                                                                2017 WI 80

                  SUPREME COURT          OF    WISCONSIN
CASE NO.:               2015AP89-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Mark Alan Ruppelt, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Mark Alan Ruppelt,
                                  Respondent-Appellant.
                            DISCIPLINARY PROCEEDINGS AGAINST RUPPELT

OPINION FILED:          July 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 15, 2017

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

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

ATTORNEYS:
       For the respondent-appellant, there were briefs filed by
Terry        E.   Johnson   and   Peterson,   Johnson   &   Murray,   S.C.,
Milwaukee, and oral argument by Terry E. Johnson.


       For the complainant-respondent, there was a brief filed by
Paul W. Schwarzenbart and Office of Lawyer Regulation, Madison,
and oral argument by Paul W. Schwarzenbart.
                                                                         2017 WI 80
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.     2015AP89-D


STATE OF WISCONSIN                             :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Mark Alan Ruppelt, Attorney at Law:


Office of Lawyer Regulation,                                          FILED
                Complainant-Respondent,                             JUL 7, 2017
      v.                                                            Diane M. Fremgen
                                                                 Clerk of Supreme Court
Mark Alan Ruppelt,

                Respondent-Appellant.




      ATTORNEY       disciplinary       proceeding.       Attorney's         license

suspended.


      ¶1        PER CURIAM.    This   disciplinary matter comes to the

court      on     Attorney    Ruppelt's     appeal       of     a     report       and

recommendation of Referee James J. Winiarski.                  The referee based

his report on a stipulation between Attorney Ruppelt and the

Office of Lawyer Regulation (OLR), in which Attorney Ruppelt

admitted 16 counts of misconduct and agreed that his Wisconsin

law license should be suspended for one year.                       In his report,
the referee recommended a slightly longer suspension than what
                                                                       No.     2015AP89-D



the parties had agreed upon:            a 15-month suspension, rather than

the    parties'      stipulated     one-year        suspension.         Through      his

appeal,      Attorney     Ruppelt    challenges          the    referee's      15-month

suspension;         he   argues     that       it   is     excessive         under   our

disciplinary case law, whereas the parties' stipulated one-year

suspension is the appropriate length.                      Attorney Ruppelt also

criticizes      certain       characterizations           and    findings       by   the

referee, and proposes that this court should adopt a policy by

which the court would give deference to parties' disciplinary

stipulations.

       ¶2     When we review a referee's report and recommendation

in    an    attorney     disciplinary      case,     we    affirm      the    referee's

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

but we review the referee's conclusions of law on a de novo

basis.      In re Disciplinary Proceedings Against Inglimo, 2007 WI

126,   ¶5,    305    Wis. 2d 71,     740   N.W.2d 125.            We   determine     the

appropriate level of discipline to impose given the particular

facts of each case, independent of the referee's recommendation,
but benefiting from it.           In re Disciplinary Proceedings Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶3     After reviewing this matter and considering Attorney

Ruppelt's appeal, we accept the referee's factual findings and

legal conclusions based on the parties' stipulation.                           We agree

with the referee's recommendation that a 15-month suspension is

appropriate,        despite     Attorney        Ruppelt's       arguments       to   the

contrary.           We   also     reject       Attorney        Ruppelt's      remaining


                                           2
                                                                            No.    2015AP89-D



arguments.      Finally, we remand this matter to the referee for

supplemental proceedings on the issue of restitution.

       ¶4    The OLR initiated this disciplinary proceeding with

the filing of a five-count complaint, which it later amended in

an 18-count complaint seeking a 15-month suspension.                               Attorney

Ruppelt filed an answer in which he denied any professional

misconduct.      During the pre-hearing phase of this proceeding,

the    OLR   dismissed       two    counts      (Counts         15    and    16)    due   to

evidentiary problems, leaving 16 counts to be resolved.

       ¶5    Shortly before the scheduled hearing in this matter,

Attorney Ruppelt entered into a stipulation in which he admitted

the remaining 16 counts of misconduct.                      Attorney Ruppelt and the

OLR agreed to a one-year suspension.

       ¶6    The referee's report accepted the parties' stipulation

and    determined       that      the   stipulated          facts      supported      legal

conclusions that Attorney Ruppelt had engaged in the remaining

16 counts of professional misconduct.                           The referee's factual

findings and conclusions of law are described in the following
paragraphs.

       ¶7    Attorney Ruppelt was admitted to the practice of law

in    this   state    in    May    1994.       He    currently        practices     law   in

Milwaukee.           Attorney       Ruppelt         has     been      the     subject     of

professional discipline on one previous occasion:                           in 2014, this

court publicly reprimanded him for engaging in improper sexual

relations with a client and providing false information to his

employer and the OLR regarding the nature and timing of his
relationship         with    the    client.               See    In   re     Disciplinary
                                           3
                                                                      No.       2015AP89-D



Proceedings Against Ruppelt, 2014 WI 53, 354 Wis. 2d 738, 850

N.W.2d 1.

    ¶8      In the instant case, Attorney Ruppelt's actions fall

into two broad categories of misconduct, both of which involve

the same client, S.J.               The first category of misconduct concerns

Attorney Ruppelt's conversion of $50,000 of trust account funds

to his own use, though he later repaid that amount.                         The second

category    of     misconduct        generally     concerns      Attorney    Ruppelt's

additional       trust       fund    improprieties;        his   dishonest       billing

practices; his efforts to conceal his misconduct from opposing

counsel, the circuit court, and the OLR; and his failure to

reasonably consult with S.J.

                             Misuse of $50,000 (Counts 1-5)

    ¶9      Attorney Ruppelt practiced law as a shareholder in a

small law firm with one other shareholder.

    ¶10     In approximately July 2006, S.J. hired the firm to

represent        him    in     a     criminal     matter     involving      a     former

girlfriend.       About two years later, the firm began representing
S.J. in a related civil action brought by his former girlfriend.

Attorney Ruppelt was counsel of record for S.J. in both the

criminal and civil cases.                  S.J.'s former girlfriend retained a

lawyer to represent her in the civil action.

    ¶11     Between          August        2006   and    June     2008,     at        least

$170,332.55 of S.J.'s funds were deposited into the firm's trust

account, most of which, as directed by Attorney Ruppelt, were

applied     to    pay    the        firm    for   fees   and     expenses       for    the
representation of S.J. in his criminal and civil cases.
                                              4
                                                                        No.    2015AP89-D



    ¶12     In    approximately       May       2007,   Attorney   Ruppelt          needed

money in connection with his and his then-wife's purchase of a

home.    Attorney Ruppelt and the firm's other shareholder agreed

that the firm would loan $50,000 to Attorney Ruppelt for that

purpose.    Attorney Ruppelt directed the firm's office manager to

disburse $50,000 from the firm's trust account to the firm; to

attribute that payment to the S.J. matter; and to then disburse

that $50,000 to him.           About three months later, Attorney Ruppelt

directed    the    office      manager   to      deposit      $50,000    of    his    own

personal funds to the firm's trust account.                      During the course

of the OLR investigation, Attorney Ruppelt provided testimony

under oath that the $50,000 trust account disbursement was for

legal    fees    earned   by    the   firm      in   S.J.'s    criminal       and    civil

cases.    This testimony was untrue.

    ¶13     The parties stipulated, and the referee agreed, that

Attorney    Ruppelt's       actions      described         above    constituted          a

violation of SCR 20:1.15(b)(1)1 (Count 1); SCR 20:8.4(c)2 (Counts



    1
       Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule."      See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.

    Former SCR 20:1.15(b)(1) provided:

         A lawyer shall hold in trust, separate from the
    lawyer's own property, that property of clients and
    3rd parties that is in the lawyer's possession in
    connection with a representation. All funds of client
    and 3rd parties paid to a lawyer or law firm in
                                                   (continued)
                                            5
                                                                        No.     2015AP89-D



2   and     4);       SCR   20:1.15(b)(3)3   (Count    3);   and   SCR        22:03(6),4

enforceable via SCR 20:8.4(h)5 (Count 5).

                            Other conduct (Counts 6-14, 17-18)6

       ¶14       As    noted    above,     the   remaining    misconduct             counts

concern Attorney Ruppelt's additional trust fund improprieties;

his    dishonest        billing    practices;    his   efforts     to    conceal        his

misconduct from opposing counsel, the circuit court, and the

OLR;       and   his    failure   to     reasonably    consult   with         S.J.      The

referee made the following findings and conclusions regarding

these counts.



       connection with a representation shall be deposited in
       one or more identifiable trust accounts.
       2
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
       3
       Former SCR 20:1.15(b)(3) provided: "No funds belonging to
a lawyer or law firm, except funds reasonably sufficient to pay
monthly account service charges, may be deposited or retained in
a trust account."
       4
       SCR  22:03(6)   provides:     "In  the   course  of   the
investigation, the respondent's willful 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."
       5
       SCR 20:8.4(h) provides:   "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 22.00l(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."
       6
       As stated above, the parties stipulated to the dismissal
of Counts 15 and 16 due to insufficient evidence.


                                             6
                                                               No.     2015AP89-D



     ¶15    Between January 2007 and July 2008, Attorney Ruppelt

caused the firm to disburse as much as $104,644.68 of S.J.'s

funds    held   as   advanced   fees   in   the   firm's   trust     account   in

excess of the amounts that had been earned by the firm on S.J.'s

cases.     The parties stipulated, and the referee agreed, that

this conduct constituted a violation of SCR 20:1.15(b)(4)7 and

SCR 20:8.4(c) (Counts 6 and 7).

     ¶16    Between August 2006 and July 2008, Attorney Ruppelt

also caused the firm to disburse as much as $134,446.88 in fees

from S.J.'s funds in trust, without providing S.J. with written

notice of the disbursements at least five business days before

making them, and without identifying the balance of S.J.'s funds

in trust following the withdrawal of those fees.                   The parties

stipulated,      and    the     referee     agreed,   that    this      conduct

constituted a violation of SCR 20:1.15(g)(1)8 (Count 8).


     7
         Former SCR 20:1.15(b)(4) provided:

          Except as provided in par. (4m), unearned fees
     and advanced payments of fees shall be held in trust
     until earned by the lawyer, and withdrawn pursuant to
     sub. (g). Funds advanced by a client or 3rd party for
     payment of costs shall be held in trust until the
     costs are incurred.
     8
         Former SCR 20:1.15(g)(1) provided:

          At least 5 business days before the date on which
     a disbursement is made from a trust account for the
     purpose of paying fees, with the exception of
     contingent fees or fees paid pursuant to court order,
     the lawyer shall transmit to the client in writing all
     of the following:

                                                                   (continued)
                                       7
                                                                            No.     2015AP89-D



       ¶17        In 2008, Attorney Ruppelt used a general durable power

of attorney from S.J. to liquidate S.J.'s life insurance policy

without consulting with S.J.                 Attorney Ruppelt then deposited an

$18,779.51 check payable from the life insurance company to S.J.

in the firm's trust account, endorsing the check using S.J.'s

power of attorney.                 The deposit of funds from the insurance

company does not appear in S.J.'s client ledger.                               The parties

stipulated,            and       the    referee       agreed,      that     this     conduct

constituted a violation of SCR 20:1.4(a)(2)9 (Count 9).

       ¶18        Both         before     and         after        Attorney        Ruppelt's

representation            of     S.J.   ended,       S.J.   sent     several   letters     to

Attorney Ruppelt stating that he did not know how much of his

money remained in the trust account.                        Attorney Ruppelt failed to

provide S.J. with a full accounting for the funds received in

trust either during or after the representation.                               The parties

stipulated, and the referee agreed, that by failing to provide

S.J.       with    a     full,    written   accounting         for    his   funds    at   the



            a. an itemized bill or other accounting showing
       the services rendered;

            b. notice of the amount owed and the anticipated
       date of the withdrawal; and

             c. a statement of the balance of the client's
       funds   in  the   lawyer trust  account  after  the
       withdrawal.
       9
       SCR 20:1.4(a)(2) provides: "A lawyer shall reasonably
consult with the client about the means by which the client's
objectives are to be accomplished."


                                                 8
                                                                            No.    2015AP89-D



termination of the representation, Attorney Ruppelt violated SCR

20:1.15(d)(2)10 (Count 10).

       ¶19    In     the    civil      action       brought    by    S.J.'s       girlfriend

against S.J., Attorney Ruppelt produced in discovery, pursuant

to a circuit court order, twelve invoices dated between February

of    2007   and     October      of    2009,       when   those    bills     were       either

altered in June of 2010 or not generated until June of 2010.

The    parties       stipulated,       and   the       referee      agreed,       that    this

conduct constituted a violation of SCR 20:8.4(c) (Count 11).

       ¶20    Also in the civil action brought by S.J.'s girlfriend

against S.J., Attorney Ruppelt filed an affidavit stating that

"No   funds    have        been   expended      for    any    reason     other     than    the

criminal defense of [S.J.]."                    This statement was untrue given

that $50,000 of S.J.'s funds had been temporarily used to assist

Attorney Ruppelt in the purchase of a new home, and Attorney

Ruppelt had repeatedly withdrawn funds from the trust before

they had been earned.               The parties stipulated, and the referee

agreed,       that     this       conduct           constituted      a    violation          of
SCR 20:3.3(a)(l)11 (Count 12).


       10
       Former   SCR   20:15(d)(2)   provided:      "Upon   final
distribution of any trust property or upon request by the client
or a 3rd party having an ownership interest in the property, the
lawyer shall promptly render a full written accounting regarding
the property."
       11
       SCR 20:3.3(a)(1) provides: "A lawyer shall not knowingly
make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer."


                                                9
                                                                              No.      2015AP89-D



       ¶21       Also in the civil action brought by S.J.'s girlfriend

against S.J., Attorney Ruppelt failed to respond to discovery

requests for retainer contracts, billing statements, and S.J.'s

trust account ledger, necessitating two court orders to compel

discovery.             Attorney      Ruppelt       ultimately         produced    a    retainer

agreement, which was dated July 9, 2006, but had actually been

signed      by       S.J.    in   early     July       2010.     Attorney     Ruppelt       also

produced         a    trust       account       ledger    that    omitted        the    $50,000

disbursed to Attorney Ruppelt in connection with his purchase of

a   new     home,      his    replacement         of     that   $50,000      several     months

later, and his deposit of the proceeds of S.J.'s life insurance

policy.          The parties stipulated, and the referee agreed, that

this      conduct       constituted         a    violation       of    SCR   20:8.4(c)       and

SCR 20:3.4(d)12 (Counts 13 and 14).

       ¶22       During the course of his legal work for S.J., Attorney

Ruppelt charged S.J. $395 per hour for work performed by an

associate, whose hourly rate was then $200, as well as for work

performed by his legal assistant.                         The parties stipulated, and
the referee agreed, that this conduct constituted a violation of

SCR 20:1.5(a)13 (Count 17).

       12
       SCR 20:3.4(d) provides: "A lawyer shall not in pretrial
procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper
discovery request by an opposing party."
       13
            SCR 20:1.5(a) provides:

            A lawyer shall not make an agreement for, charge,
       or collect an unreasonable fee or an unreasonable
       amount for expenses. The factors to be considered in
                                                       (continued)
                                                  10
                                                                     No.    2015AP89-D



       ¶23   During the course of the OLR investigation, Attorney

Ruppelt represented to the OLR that he had provided S.J. with

billing statements showing the work performed by the firm, when

this   was   not    in   fact   true.           Attorney   Ruppelt   also    falsely

represented to the OLR he had provided an accurate trust account

ledger both to opposing counsel in S.J.'s civil matter and to

S.J.    at   the     termination      of    representation.           The    parties

stipulated,        and   the    referee          agreed,    that     this    conduct

constituted    a    violation    of   SCR 22:03(6),         enforceable     via   SCR

20:8.4(h) (Count 18).



       determining the reasonableness of a fee include the
       following:

            (1) the time and labor required, the novelty and
       difficulty of the questions involved, and the skill
       requisite to perform the legal service properly;

            (2) the likelihood, if apparent to the client,
       that the acceptance of the particular employment will
       preclude other employment by the lawyer;

            (3) the fee customarily charged in the locality
       for similar legal services;

             (4) the amount involved and the results obtained;

            (5) the time limitations imposed by the client or
       by the circumstances;

            (6) the nature and length of the                   professional
       relationship with the client;

            (7) the experience, reputation, and ability of
       the lawyer or lawyers performing the services; and

             (8) whether the fee is fixed or contingent.


                                           11
                                                                                No.     2015AP89-D



       ¶24     In his report, the referee recommended that the court

suspend Attorney Ruppelt's license for 15 months, as opposed to

the one year to which the parties had stipulated.                                     In making

this    recommendation,                the    referee         considered       a      number   of

aggravating factors.              Among other things, the referee found that

Attorney Ruppelt deliberately and repeatedly failed to follow

trust account rules, apparently believing that he would never

get caught; that he took advantage of a vulnerable client; and

that    he   engaged         in    a     variety       of     misleading       and     deceptive

behaviors in an attempt to conceal his misconduct.

       ¶25     The referee recommended that Attorney Ruppelt should

be required to pay the full costs of this proceeding.                                  The OLR's

statement of costs discloses that as of April 28, 2017, the

costs of this proceeding were $16,743.46.

       ¶26     The referee did not recommend restitution, nor did the

OLR    request         it,   explaining           that      there       were   no     reasonably

ascertainable restitution amounts.

       ¶27     We      now   turn       to    the      merits      of    Attorney      Ruppelt's
appeal.      Attorney Ruppelt argues that the referee's recommended

15-month     suspension           is    excessive.            He   argues      that    analogous

disciplinary cases best support the parties' stipulated one-year

suspension——not the referee's recommended 15-month suspension.

See, e.g., In re Disciplinary Proceedings Against Biester, 2013

WI 85, 350 Wis. 2d 707, 838 N.W.2d 79 (one-year suspension for

30    counts      of     misconduct          in   six       client      matters;      misconduct

included misuse of client funds, trust account violations, and
neglect      of     client     matters);          In     re     Disciplinary        Proceedings
                                                  12
                                                                   No.    2015AP89-D



Against    Raneda,     2012    WI   42,   340    Wis. 2d 273,    811     N.W.2d 412

(one-year suspension for 14 counts of misconduct in two client

matters; misconduct included trust account violations, lack of

candor toward a tribunal, and neglect of client matters).

    ¶28     Attorney Ruppelt further argues that this court should

adopt a policy of awarding deference to parties' disciplinary

stipulations.        Attorney Ruppelt reasons that the parties know

more about their case, the strength of the evidence, and the

implications that evidence would have for discipline than the

referee or this court.              Attorney Ruppelt also stresses that

respondent    lawyers     in    disciplinary       proceedings    would    greatly

benefit from having some certainty that this court will approve

reasonable disciplinary stipulations entered into with the OLR.

    ¶29     Attorney Ruppelt also complains that the referee's 15-

month     suspension     is    erroneously        based   on    supposition     and

conjecture.     He claims that certain of the referee's factual

findings    about    Ruppelt's      conduct      were   not   expressly    included

within the parties' stipulation and thus were not an appropriate
basis for increased discipline.                In particular, Attorney Ruppelt

takes issue with the referee's statements that his conduct was

premeditated and well planned; that he appeared to believe his

misconduct would never be detected; that he apparently felt that

S.J. was desperate and vulnerable; that he would never have

taken these liberties with a corporate or government client; and

that the referee had to assume that the parties' stipulation

captured all of the improper disbursements from S.J.'s funds in
trust.
                                          13
                                                                                 No.    2015AP89-D



       ¶30     We   disagree     with    Attorney         Ruppelt's          arguments.         To

begin with, we agree with the referee that Attorney Ruppelt's

actions merit a 15-month suspension, as opposed to the one-year

suspension called for in the parties' stipulation.                                      Although

this court often imposes the disciplinary sanctions that parties

jointly      request,     we    are     free    to    reject       such          agreements    as

circumstances        require.            See,        e.g.,        In        re    Disciplinary

Proceedings Against Schreier, 2013 WI 35, 347 Wis. 2d 92, 829

N.W.2d 744      (rejecting       the    referee's recommendation,                      which was

based upon the parties' stipulation, for a two-year suspension

with no conditions for reinstatement, and instead imposing a 30–

month    suspension       with    conditions          for    reinstatement).                  This

discretion      flows     from    the    fact     that       in    lawyer         disciplinary

cases, this court is obligated to act as a protector of the

public, the court system, and the integrity of the bar——not as a

scribe    charged       with    formalizing       the       parties'         mutual      wishes.

Although this court fully appreciates the efficiency attained

through stipulations, we will not allow the goal of efficiency
to   take precedence over the              necessity of effecting the core

functions of the lawyer disciplinary system.                           Sometimes, then, a

departure from a joint stipulation is necessary.

       ¶31     This is one of those cases.                We agree with the referee

that     the    parties'       stipulated        one-year         suspension           does    not

adequately       take    into    account       the     duration         and       severity     of

Attorney       Ruppelt's       misconduct.           We     note       in    particular       the

referee's observations that Attorney Ruppelt deliberately and
repeatedly "ignore[d] all trust rules and used trust funds as
                                            14
                                                                          No.    2015AP89-D



though they were his own"; that he displayed a willingness to

cover-up his misconduct and deceive those who inquired about it;

that his liquidation of S.J.'s life insurance policy without

S.J.'s knowledge or consent was "most disturbing"; and that he

exhibited       "a       total    lack    of     professionalism         and    the    moral

character required of a licensed attorney."                          On these facts,

which we deem justified by the record, our cases readily support

the 15-month suspension called for by the referee.                              See, e.g.,

In re Disciplinary Proceedings Against Edgar, 230 Wis. 2d 205,

601   N.W.2d 284          (1999)      (two-year      suspension    for    conversion       of

$11,000       from       escrow    account,         misrepresentations,         and     trust

account violations).

       ¶32     We acknowledge here, as we have in the past, that "the

imposition of discipline in attorney disciplinary cases is not

an    exact    science."           In    re    Disciplinary       Proceedings         Against

Siderits, 2013 WI 2, ¶33, 345 Wis. 2d 89, 824 N.W.2d 812.                                This

case certainly proves the point.                      To define with precision the

boundary between conduct that merits a one-year suspension, as
the parties requested, versus conduct that merits a 15-month

suspension,         as    we   deem     appropriate,      is   virtually       impossible;

both terms are of significant length, both terms will greatly

impact the respondent lawyer's practice, and both terms will

require       the    respondent         lawyer      to   successfully      complete       the

formal reinstatement procedure set forth in SCRs 22.29 through

22.33.

       ¶33     On these particularly troubling facts, however, we are
confident that a fifteen-month suspension is needed to impress
                                               15
                                                                             No.       2015AP89-D



upon    Attorney       Ruppelt         and    other    lawyers      in    this     state     the

seriousness of the professional misconduct at issue here, and to

protect the public from similar misconduct in the future.

       ¶34     We     reject       the        remainder       of    Attorney        Ruppelt's

arguments.          As foreshadowed by the above discussion, we will not

adopt, through case law, a policy by which the court will defer

to     parties'       disciplinary           stipulations,         as    Attorney       Ruppelt

requests.       Due to our overarching duty to protect the public and

the bar, we must remain the ultimate arbiter of the appropriate

level    of    discipline,         owing       no    deference     on     this     subject    to

either the parties or the referee.                          To be sure, parties' and

referees'       opinions          on      disciplinary         sanctions         are     highly

informative, but they are just that——opinions, not authorities

to which we must defer.                      See In re Disciplinary Proceedings

Against       Roitburd,        2016      WI     12,    ¶20,    368       Wis. 2d 595,        882

N.W.2d 317          (stating       that       "it     is    ultimately       this       court's

responsibility"              to        determine           appropriate           disciplinary

sanctions).
       ¶35     Neither do we agree with Attorney Ruppelt's argument

that a referee may not make any factual findings outside of the

facts expressly included within the parties' stipulation.                                  As a

factfinder, the referee may draw any reasonable inferences from

the evidence introduced——here, the stipulated facts——just as a

circuit       court    may    do    when      operating       as   a     factfinder.         See

SCR 22.16 (providing that a referee has the powers of a judge

trying a civil action); see also Cogswell v. Robertshaw Controls
Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647, 650 (1979) (when the
                                                16
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trial judge acts as the finder of fact, it is within the trial

judge's     authority        to       draw    reasonable           inferences         from   the

credible evidence).

      ¶36    It can be no other way.                       To illustrate the point,

consider     the     number           of    factors       relevant       to     disciplinary

recommendations          that     referees         must     frequently        infer.          See

generally        American    Bar       Association's          Standards         for    Imposing

Lawyer Sanctions, § 9.22                   (including, as potential aggravating

factors     to    consider       in    evaluating         discipline,      the        respondent

lawyer's dishonest or selfish motive, bad faith obstruction of

the   disciplinary        proceeding,          refusal      to     acknowledge         wrongful

nature of conduct, and indifference to restitution).                                   It would

be an unusual lawyer indeed who would explicitly stipulate to

any of these behaviors or attitudes.                       Simply put, some facts are

inferential rather than empirical, and referees, like circuit

courts,     are    empowered          to    infer    them.         We    therefore       reject

Attorney Ruppelt's argument.

      ¶37    We    turn     next       to    the    issue     of    costs.       Our    general
practice is to impose full costs on attorneys who are found to

have committed misconduct.                  See SCR 22.24(1m).            Attorney Ruppelt

has   not   claimed       that     there      are   reasons        to    depart       from   that

practice in this matter, and we have not found any reason to do

so.   We therefore impose full costs.

      ¶38    Finally, we turn to the issue of restitution.                                    In

response to a concern expressed by the referee in reviewing the

parties' stipulation, the parties informed the referee that no
restitution        was      due        because        there        was     no       reasonably
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ascertainable restitution amount.                       The referee deferred to this

view,    though        he    expressed          concern    in     his    report        that    the

parties'     stipulation             was    "unclear"        on     "whether          [Attorney]

Ruppelt ultimately accounted to his client for his time and all

funds taken by [Attorney] Ruppelt out of the trust account," and

shed no light on "whether the client was satisfied with any

accounting    that          was     rendered      or . . . with          the    overall       fees

charged."

    ¶39      We share the referee's concerns.                           On this record, it

seems that the amount of restitution owed, if any, is not so

much unknowable as it is simply unknown.                           Attorney Ruppelt has

stipulated that he prematurely disbursed $104,644.68 of S.J.'s

advanced fees, and that he overstated the hourly rate of his

associate and his legal assistant for the time they billed to

S.J.'s   cases.             Based    on    statements      made     to    the    referee,      it

appears to be Attorney Ruppelt's position that, despite these

billing improprieties, his firm ultimately provided sufficient

legal services to justify                   all    collected fees.              Whether this
proposition       is    true        or    not    is    a   determinable         fact,     to   be

determined based on more than Attorney Ruppelt's mere say-so.

    ¶40      We    are        not,       however,      a   fact-finding          court.         We

therefore     remand          this       matter       to   the    referee        for     further

proceedings on the issue of restitution.                          The referee is to file

a supplemental report on this issue within 120 days.

    ¶41      IT IS ORDERED that the license of Mark Alan Ruppelt to

practice law in Wisconsin is suspended for a period of fifteen
months, effective August 18, 2017.
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    ¶42    IT IS FURTHER ORDERED that Mark Alan Ruppelt shall

comply with the requirements of SCR 22.26 concerning the duties

of a person whose license to practice law in Wisconsin has been

suspended.

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

of this order, Mark Alan Ruppelt shall pay to the Office of

Lawyer   Regulation    the   costs   of   this    proceeding,    which   are

$16,743.46 as of April 28, 2017.

    ¶44    IT IS FURTHER ORDERED that within 120 days of the date

of this order, the referee shall file a supplemental report on

the issue of restitution, which shall include a recommendation

on how the costs of the referee's supplemental review should be

paid.

    ¶45    IT   IS    FURTHER   ORDERED    that    compliance    with    all

conditions of this order is required for reinstatement.                  See

SCR 22.29(4)(c).




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      ¶46   SHIRLEY S. ABRAHAMSON, J.                   (concurring).           I join the

per   curiam     opinion.       I    write       about       deferring         to    parties'

stipulations.

      ¶47   Attorney       Ruppelt     proposes             that     the       court       give

deference   to     parties'    disciplinary            stipulations.            I    disagree

with his proposal.

      ¶48   I   wholeheartedly       agree       with       the    per    curiam      opinion

stating that the court will not act as a "scribe charged with

formalizing the parties' mutual wishes" and that the court will

not give deference to the parties' stipulations:

      Although this court fully appreciates the efficiency
      attained through stipulations, we will not allow the
      goal of efficiency to take precedence over the
      necessity of effecting the core functions of the
      lawyer discipline system [namely to protect the
      public, the court system, and the integrity of the
      bar].

            . . . .

      Due to our overarching duty to protect the public and
      the bar, we must remain the ultimate arbiter of the
      appropriate level of discipline, owing no deference on
      this subject to either the parties or the referee.
Per curiam op., ¶¶30, 35.

      ¶49   That    said,     when    the       per    curiam      opinion          refers   to

departure from a joint stipulation when "necessary," per curiam

op., ¶30, it means when a departure from a joint stipulation

would   help     protect    the      public,          the   court        system      and     the

integrity of the bar.

      ¶50   For the reason set forth, I write separately.



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