                                                         2017 WI 49

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:                2016AP663-D
COMPLETE TITLE:          In the Matter of Disciplinary Proceedings
                         Against John H. Peiss, Attorney at Law:

                         Office of Lawyer Regulation,
                                   Complainant,
                              v.
                         John H. Peiss,
                                   Respondent.
                             DISCIPLINARY PROCEEDINGS AGAINST PEISS

OPINION FILED:           May 11, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:            ABRAHAMSON, J. concurs (opinion filed).
  CONCURRED/DISSENTED:
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
                                                                           2017 WI 49
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.     2016AP663-D


STATE OF WISCONSIN                               :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against John H. Peiss, Attorney at Law:


Office of Lawyer Regulation,                                              FILED
            Complainant,                                           MAY 11, 2017
       v.                                                             Diane M. Fremgen
                                                                   Clerk of Supreme Court
John H. Peiss,

            Respondent.




       ATTORNEY    disciplinary        proceeding.          Attorney's         license

revoked.


       ¶1   PER CURIAM.     We review the report of Referee John B.

Murphy recommending that Attorney John H. Peiss's license to

practice    law   in   Wisconsin      should   be     revoked,       as    discipline

reciprocal to that imposed by the Supreme Court of Illinois.

Upon   careful    review   of   the    matter,       we   accept     the    referee's

recommendation.        We also assess the costs of the proceeding,

which are $2,026.90 as of December 28, 2016, against Attorney
Peiss.
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    ¶2    Attorney         Peiss      was    admitted       to      practice      law   in

Wisconsin in 1982.          He was also admitted to practice law in

Illinois on March 6, 1992.             Attorney Peiss's license to practice

law in Wisconsin was suspended in 1999 for failure to comply

with continuing legal education requirements and failure to pay

state bar dues.       In 2010, Attorney Peiss's Wisconsin law license

was suspended for one year as discipline reciprocal to that

imposed by the Supreme Court of Illinois.                           Attorney Peiss's

misconduct     in     Illinois        consisted       of     conversion         and     the

unauthorized       practice      of     law.          See    In      re     Disciplinary

Proceedings Against Peiss, 2010 WI 115, 329 Wis. 2d 325, 788

N.W.2d 636.    His Wisconsin license remains suspended.

    ¶3    On September 21, 2015, the Supreme Court of Illinois

entered an order disbarring Attorney Peiss in that state.                               The

disbarment     was    based    on     four      counts      of    misconduct:           (1)

practicing law in a jurisdiction where doing so violates the

regulation    of     the   legal      profession      in    that     jurisdiction       by

practicing law in Illinois while suspended; (2) committing a
criminal act that reflects adversely on the attorney's honesty,

trustworthiness or fitness as a lawyer in other respects by

committing    the     criminal      offense      of    theft;       (3)     engaging    in

conduct       involving            dishonesty,             fraud,          deceit        or

misrepresentation; and (4) engaging in conduct prejudicial to

the administration of justice.

    ¶4    Attorney Peiss did not notify the Office of Lawyer

Regulation (OLR) of the Illinois disbarment within 20 days of
its effective date.
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    ¶5      On April 1, 2016, the OLR filed a complaint against

Attorney Peiss alleging the following counts of misconduct:

    Count One:    By virtue of the Illinois disciplinary
    disbarment, Attorney Peiss is subject to reciprocal
    discipline in Wisconsin pursuant to SCR 22.22.1

    Count Two:    By failing to notify the OLR of his
    disbarment in Illinois for professional misconduct
    within 20 days of the effective date of its
    imposition, Attorney Peiss violated SCR 22.22(1).
    ¶6      Attorney Peiss filed an answer to the OLR's complaint

on July 12, 2016.           He filed an amended answer on September 9,

2016.     The amended answer raised three affirmative defenses:

(1) that the hearing in Illinois was conducted without notice

to, or service of process on Attorney Peiss; (2) that Attorney

Peiss had no opportunity to be heard in the Illinois action; and

(3) that there was no proof of any misconduct in Illinois.

    ¶7      The     OLR     filed        a    motion      for     summary         judgment.

Following    briefing,      the     referee         granted   the    summary       judgment

motion.     The referee noted that under SCR 22.22(3), this court

shall     impose    the     identical         discipline        imposed      in     another

jurisdiction       unless    one    or       more    of   three     exceptions       apply.

    1
        SCR 22.22 provides:          Reciprocal Discipline.

    (1) An attorney on whom public discipline for
    misconduct or a license suspension for medical
    incapacity has been imposed by another jurisdiction
    shall promptly notify the director of the matter.
    Failure to furnish the notice within 20 days of the
    effective date of the order or judgment of the other
    jurisdiction constitutes misconduct.




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Attorney      Peiss    argued          that    "the      procedure      in       the   other

jurisdiction was so lacking in notice or opportunity to be heard

as    to    constitute      a    deprivation       of    due    process."          See    SCR

22.22(3)(a).        Attorney Peiss claimed that the failure of the

Illinois disciplinary authorities to personally serve him with

either of the two complaints filed in the Illinois action was

fatal to the Illinois court's prosecution of the disciplinary

case against him.           The referee disagreed.

       ¶8     The referee noted that the pertinent Illinois rule,

Attorney Registration and Disciplinary Commission (ARDC) Rule

214(b)      provides     that     an    attorney        may    be    served      either    by

personal service or, if a person authorized to make personal

service files an affidavit that the respondent resides out of

state, has left the state, on due inquiry cannot be found, or is

concealed within the state so that process cannot be served upon

him, the respondent may be served by ordinary mail.

       ¶9     The referee said a review of the Illinois ARDC record

and    statements      of       Attorney      Peiss     confirm      that    he    was    not
personally      served.          However,      the    referee       said    the    Illinois

record      makes   clear        that    at    the      time   the    ARDC's       original

complaint was filed, Attorney Peiss was in contact with the ARDC

and was aware as early as June of 2013 that a disciplinary

inquiry was under way.             In addition, the referee said following

the filing of the first complaint, Attorney Peiss was in contact

with an investigator from the ARDC and was aware the ARDC wanted

to personally serve the complaint on him.                            According to the
Illinois record, Attorney Peiss told an ARDC investigator that
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he would return to Chicago to accept service of the complaint on

August 6, 2013.          Attorney Peiss never made contact with the ARDC

to accept service.         ARDC later hired a process server to attempt

service on Attorney Peiss in Madison, Wisconsin, where he was

taking care of his mother who had suffered a stroke.                                      This

attempt at personal service was also unsuccessful and substitute

service was made by mail.                Attorney Peiss did not answer the

complaint.

       ¶10    The referee went on to note that the ARDC subsequently

filed an amended complaint on December 10, 2013.                           This complaint

was mailed to Attorney Peiss, and the record indicates that he

received      the    complaint    but     failed      to     file    an    answer.         The

Illinois      matter     came   on     for    a    hearing     before      the     Board    of

Illinois       Attorney     Registration           and     Disciplinary          Commission

(Board)      on   June    16,   2014.         Attorney       Peiss    appeared       at    the

hearing and was represented by counsel.                      The referee noted that

because the substantive accusations of the amended complaint had

been deemed admitted by Attorney Peiss's failure to file an
answer, the hearing dealt with the disciplinary recommendation.

However,      the    referee     said    it       appeared    from     the       report    and

recommendation in the Illinois case that the Board did allow

Attorney Peiss to make some due process arguments pertaining to

the alleged lack of personal service, but the Board was not

persuaded by his claims.                The chair of the Board specifically

said    that      "after    listening         to    respondent's           testimony       and

observing      his   demeanor     at    the       hearing,    we     did   not     find    him
credible."
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    ¶11     The referee said:

    [I]t [is] impossible to believe that the respondent
    was in any way deprived of due process in the Illinois
    proceedings against him. Any problems in service were
    the direct result of the respondent's own misbehavior
    and not the result of any failure on the part of the
    ARDC.   Further, the due process issue was considered
    by the Illinois authorities at the June 2015 [sic]
    hearing and respondent's arguments were properly
    rejected by that tribunal.
    ¶12     The referee went on to point out that Attorney Peiss

"undertook the same sort of behavior" when attempts were made to
serve the complaint in the instant action.                      The referee noted

that according to an affidavit of the process server, numerous

attempts at personal service were made without success and when

the process server finally made telephone contact with Attorney

Peiss to discuss meeting to accept service, Attorney Peiss's

response   was,    "ah   no,"   whereupon     he    hung    up    on   the    process

server, after which the complaint had to be served by mail.

    ¶13     The referee rejected Attorney Peiss's argument that

reciprocal discipline was unwarranted because he was denied due

process in the Illinois proceeding.                 The referee granted the
OLR's   motion     for   summary   judgment     and      recommended        that   this

court   impose     discipline      reciprocal      to    that    imposed      by   the

Supreme    Court    of   Illinois,    i.e.    the       revocation     of    Attorney

Peiss's license to practice law in Wisconsin.                    The referee also

recommended that Attorney Peiss be assessed the full costs of

this proceeding.

    ¶14     Attorney Peiss has not appealed the referee's report
and recommendation.        Accordingly, this court reviews the matter

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pursuant to SCR 22.17(2), which provides that if no appeal is

timely      filed,    the   court   shall      review      the   referee's    report;

adopt, reject or modify the referee's findings and conclusions

or remand the matter to the referee for additional findings; and

determine and impose appropriate discipline.

      ¶15     Upon     careful    review    of      the    matter,   we    adopt    the

referee's findings of fact and conclusions of law.                           We agree

with the referee that Attorney Peiss failed to demonstrate that

he    was     denied      due    process       in   the     Illinois       proceeding.

Accordingly, we approve the referee's recommendation and impose

the   identical        discipline    imposed        by     the   Supreme    Court   of

Illinois, namely the revocation of Attorney Peiss's license to

practice law in Wisconsin.           We also assess the full costs of the

proceeding against Attorney Peiss.

      ¶16     IT IS ORDERED that the license of John H. Peiss to

practice law in Wisconsin is revoked, effective the date of this

order.

      ¶17     IT IS FURTHER ORDERED that, to the extent he has not
already done so, John H. Peiss shall comply with the provisions

of SCR 22.26 concerning the duties of a person whose license to

practice law in Wisconsin has been revoked.

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

of this order, John H. Peiss shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

      ¶19     IT     IS   FURTHER   ORDERED         that    compliance      with    all

conditions of this order is required for reinstatement.                       See SCR
22.28(3).
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     ¶20    SHIRLEY S. ABRAHAMSON, J.             (concurring)           This is a

reciprocal discipline case.1          It raises the question of what is

"identical discipline" in a reciprocal discipline matter.2

     ¶21    The Office of Lawyer Regulation seeks revocation of

Attorney Peiss's Wisconsin license in the instant case, while

the Illinois discipline was "disbarment."                The documents filed

by the OLR in the instant case, like the documents filed in

other reciprocal discipline cases, do not explain the extent to

which the other state's discipline (here disbarment) is or is

not identical to the Wisconsin discipline of revocation.

     ¶22    This failure on the part of the OLR hampers the work

of this court.          The per curiam opinion is defective in not

equating disbarment and revocation.

     ¶23    I     conclude    that     the     OLR     should      improve     its

presentation      in   reciprocal    discipline      cases   by    comparing    the

Wisconsin discipline to be imposed with the discipline imposed

in the other state.
     ¶24    For   example,   my     research   of    Illinois      law    indicates

that disbarment in Illinois amounts to a five-year revocation of

the license before the attorney may seek reinstatement.                        See

     1
       In my dissent in In re Disciplinary Proceedings Against
Buzawa, No. 2016AP2351-D, unpublished order (Wis. S. Ct. Apr.
10, 2017; separate writing May 11, 2017), I compared what I view
as the correct procedure used in the instant case with what I
considered a flawed procedure used in Buzawa to gauge a lawyer's
challenge to another state's discipline proceeding. The Buzawa
order is attached as Attachment A.
     2
         See SCR 22.22(3).


                                       1
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Illinois Rule 767.           Thus, disbarment in Illinois appears to be

identical to license revocation in Wisconsin.                       SCR 22.29(2).

      ¶25    The OLR has an advantage over a justice or a Supreme

Court commissioner in determining Illinois law.                                 In contrast

with a justice or court staff——who may not engage in ex parte

communications——the OLR may do its own research on other states'

laws, may seek assistance from officials in other states, and

may   submit    proof      regarding        the    nature    of     the    other    state's

discipline.          A     lawyer     challenging        the      proposed        Wisconsin

discipline may submit his or her own documentation regarding the

imposition of identical discipline.

      ¶26    If this case were initially a Wisconsin matter, the

court   in     all       probability        would    order       restitution        to     the

attorney's     victims.        The     Illinois        proceeding         did    not     order

restitution.         Should    Wisconsin           nevertheless      seek       restitution

before the Wisconsin license is reinstated?

      ¶27    The     instant        case,     as     well    as      other       reciprocal

discipline     cases,       raise     the     question      of    what     is     identical
discipline.        I suggest that the OLR Procedure Review Committee

(Professor Marsha Mansfield, University of Wisconsin Law School,

Reporter), appointed by the court in June 2016, should consider

reviewing      and    revising       the      Supreme       Court     Rules       governing

reciprocal discipline when a lawyer licensed in Wisconsin is

disciplined in another state.

      ¶28    For the reasons set forth, I write separately.




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