                                                              2016 WI 70

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2010AP2942-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against
                       John Kenyatta Riley, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant-Respondent,
                            v.
                       John Kenyatta Riley,
                                 Respondent-Appellant.

                            DISCIPLINARY PROCEEDINGS AGAINST RILEY

OPINION FILED:         July 15, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         October 23, 2012

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:          Abrahamson, J. and Bradley, A.W., J. (Part I of
                       concurrence only)
  DISSENTED:           Prosser, J.
  NOT PARTICIPATING:   Bradley, R.G., J.

ATTORNEYS:
       For the respondent-appellant, there were briefs filed by
Stacie H.         Rosenzweig,   Halling & Cayo,   Milwaukee and   Paul R.
Erickson, Gutglass, Erickson, Bonville & Larson, SC, Milwaukee.
Oral argument by Paul R. Erickson.


       For the Office of Lawyer Regulation, there was a brief
filed by Matthew J. Price, Foley & Lardner, LLP, Milwaukee and
oral argument by Matthew J. Price.
                                                                           2016 WI 70
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.     2010AP2942-D


STATE OF WISCONSIN                               :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against John Kenyatta Riley, Attorney at Law:

Office of Lawyer Regulation,                                             FILED
              Complainant-Respondent,
                                                                   JUL 15, 2016
      v.
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
John Kenyatta Riley,

              Respondent-Appellant.




      ATTORNEY      disciplinary       proceeding.           Attorney         publicly

reprimanded.



      ¶1      ROGGENSACK,     C.J.,    ZIEGLER,           J.,      AND      GABLEMAN,

J.    Attorney John Kenyatta Riley appeals from the report of the

referee, Attorney Hannah C. Dugan, who concluded that Attorney

Riley   had    violated     three   Rules   of       Professional        Conduct     for

Attorneys and recommended that he be publicly reprimanded and

that he be required to pay the full costs of this disciplinary

proceeding.
                                                                   No.     2010AP2942-D



       ¶2      After our careful review of this matter and the legal

issues it presents, a majority of the court has agreed that

Attorney Riley committed professional misconduct, that he should

be publicly reprimanded, and that he should be required to pay

the    full    costs    of   this    disciplinary      proceeding,        which   were

$16,961.70 as of November 6, 2012.                     This is, therefore, the

mandate of the court.             A majority of the court, however, does

not agree as to a single rationale for reaching that result.

Three justices, Chief Justice Roggensack, Justice Ziegler, and

Justice Gableman, agree with the reasoning set forth in this

lead opinion.         Justice Abrahamson and Justice Ann Walsh Bradley

concur in the mandate, but do not join this opinion.1                         Each of

them sets forth her views in a concurring opinion.                            Justice

Prosser dissents.2

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       ¶3      Attorney Riley was admitted to the practice of law in

Wisconsin in May 1996.            He has been the subject of professional

discipline      on     one   prior   occasion.         In   2009   Attorney       Riley
consented to the imposition of a private reprimand for violating

SCRs       20:1.3    (lack   of   diligence)     and    20:1.4(b)        (failure    to


       1
       The mandate that follows this lead opinion is the mandate
of the court as agreed upon by all of the participating justices
except Justice Prosser.
       2
       Justice N. Patrick Crooks participated in the oral
argument of this matter, but he passed away while the matter was
pending. Justice Rebecca G. Bradley did not participate in this
matter.


                                         2
                                                                     No.       2010AP2942-D



explain a legal matter to a client).                    He currently practices in

Milwaukee with the law firm of Eisenberg, Riley and Zimmerman,

S.C.

       ¶4     This case involves the intersection of the careers of

two attorneys, Attorney Riley and Attorney Brian K. Polk.                                An

understanding of Attorney Polk's employment history is necessary

to an understanding of the charges of professional misconduct

against Attorney Riley.

       A. Attorney Polk's Employment History and Reinstatement

                                       Proceeding

       ¶5     From July 1997 until June 2000, Attorney Polk worked

as an associate attorney for the law firm of Eisenberg, Weigel,

Carlson, Blau, Reitz & Clemens, S.C. (Eisenberg, Weigel)3 doing

"intake"      work    for     personal        injury     cases.      He        ended     his

employment         with     that    firm      because       he   claims    he         became

disillusioned        with     the    lack      of    opportunities        to     do    more

substantive legal work.                After leaving the Eisenberg, Weigel

firm, Attorney Polk was unemployed for a while and failed to
comply      with    his     continuing      legal      education   (CLE)        reporting

requirement.         His     license    was       administratively      suspended        for

that reason in June 2001.

       ¶6     Over    the    next   several        years,    Attorney     Polk    held    a

number of different non-legal jobs.                      Although his license to

practice law in Wisconsin remained administratively suspended,

       3
       One of the named partners of the Eisenberg, Weigel firm
was Attorney Alvin H. Eisenberg.


                                              3
                                                    No.   2010AP2942-D



at some point in the fall of 2005 Attorney Polk began to work

for a new law firm4 that Attorney Alvin Eisenberg had founded

after the breakup of the Eisenberg, Weigel firm.5     Attorney Polk

was made part of the personal injury "team" that was led by

Attorney Eisenberg.   He solicited individuals to become personal

injury clients of the firm, he met with and gave legal advice to

clients about their claims, he did property damage settlements,

and he corresponded with third parties using firm letterhead and

identifying himself in the signature block as an "attorney at

law."   During the time that Attorney Polk worked for the new

Eisenberg firm, he spent approximately 50 hours per week or more

in the firm's offices.   Attorney Polk was given his own office

and telephone extension, and his extension was listed on the

firm's telephone extension list.    Because the firm was reluctant

to use Attorney Polk's real name over its intercom system, for a

    4
       The initial name of the new firm founded by Attorney
Eisenberg is not clear from the record of this matter.    Thus,
for purposes of this opinion, the firm will be referenced as
"the new Eisenberg firm."   At some point after Attorney Riley
joined the new Eisenberg firm, the name of the firm was changed
to Eisenberg & Riley. The record does not disclose exactly when
this occurred, but it apparently occurred prior to September 6,
2006, the date of the hearing that is at issue in this matter,
because Attorney Riley identified himself at that hearing as
"Attorney Kenyatta Riley [of] the Law Offices of Eisenberg and
Riley."
    5
       There were ongoing disputes, civil actions and attorney
regulatory complaints between Attorney Eisenberg and Attorney
Joseph Weigel in connection with the breakup of the Eisenberg,
Weigel firm. See In re Disciplinary Proceedings Against Weigel,
2012 WI 124, 345 Wis. 2d 7, 823 N.W.2d 798, cert. denied,
___U.S.___, 135 S. Ct. 375 (2014).


                                4
                                                                             No.    2010AP2942-D



while the firm used the pseudonym "James Pearson" for Attorney

Polk when paging him over the firm's intercom system.                                 Attorney

Polk testified in this proceeding that he stopped working for

the new Eisenberg firm in the first half of 2006.6

     ¶7        Attorney Riley was familiar with Attorney Polk because

Attorney       Riley    also     had    been       an    associate         attorney       at   the

Eisenberg, Weigel firm during the same time period as Attorney

Polk.     Attorney Riley moved to a different law firm and then

opened his own solo practice.                      It appears that Attorney Riley

also began working as an associate attorney at the new Eisenberg

firm in the middle part of 2005, shortly before Attorney Polk

began    his    employment       with    that       firm.           During    the   time       when

Attorney       Polk    was   also      employed         by    the    new     Eisenberg     firm,

Attorney Riley did not have any management responsibilities in

that firm.          At a later date, he did begin to take on management

responsibilities.

     ¶8        In     February    2006,     while            Attorney      Polk     was    still

working as an attorney at the new Eisenberg firm, he filed a
petition for the reinstatement of his license to practice law in

this state.           After conducting an investigation, the Office of

Lawyer     Regulation          (OLR)      filed         a      response        opposing         the

     6
       Attorney Eisenberg received a consensual public reprimand
in connection with hiring Attorney Polk to engage in law-related
work and allowing him to hold himself out as an attorney while
his license to practice law was administratively suspended.
Public Reprimand of Alvin H. Eisenberg, No. 2012-8 (electronic
copy                         available                        at
https://compendium.wicourts.gov/app/raw/002479.html).


                                               5
                                                                                 No.    2010AP2942-D



reinstatement        petition    due        to       a    number      of     concerns          about

Attorney Polk's character and fitness to practice law, including

his receipt of a citation for loitering-illegal drug activity,

his   multiple       citations       and    convictions              for    operating          after

revocation      of    his     driver's       license         and      for         other      traffic

offenses, and his failure to pay multiple civil judgments.                                         The

OLR's response did not mention any concerns regarding Attorney

Polk's employment history or his unauthorized practice of law

during his administrative suspension, presumably because it was

not aware of Attorney Polk's employment at the new Eisenberg

firm.

      ¶9     Because     there       appeared        to    be    a    number           of   disputed

factual issues regarding the concerns raised by the OLR, on June

23, 2006, this court referred the matter to a referee, Reserve

Judge      Dennis    Flynn,     to    receive            evidence      and         make      factual

determinations         regarding           (1)       the        number       and            type    of

citations/convictions           that        Attorney        Polk           had     received         in

connection with his operation of a motor vehicle, (2) the facts
surrounding the incident for which Attorney Polk had received

the citation for loitering-illegal drug activity and whether he

had misrepresented those facts to the OLR in its investigation,

and   (3)    the     facts   concerning          the      nature      and        status       of   the

outstanding civil judgments against Attorney Polk.                                     The court's

order further provided that the referee "may also consider any

other matter that the referee deems helpful to this court's

decision of the reinstatement petition."


                                                 6
                                                                           No.       2010AP2942-D



      ¶10   Attorney       Riley       did       not    have        any       role     in    the

preparation or filing of Attorney Polk's reinstatement petition.

Attorney     Polk       represented          himself         during           most     of    the

reinstatement      proceeding.          Prior      to       the    evidentiary          hearing

scheduled    by    Judge      Flynn,    however,        Attorney          Polk    spoke      with

Attorney    Eisenberg      about       concerns        he    had    with       the     upcoming

hearing.     Attorney Eisenberg then spoke with Attorney Riley and

directed    him    to   assist       Attorney      Polk      with       the    reinstatement

hearing.     The initial understanding among the three lawyers was

that Attorney Riley would act as "second chair" for the hearing,

meaning that Attorney Polk would still be primarily responsible

for   presenting        evidence,       examining           witnesses,           and     making

argument.

      ¶11   According to Attorney Riley, prior to the hearing he

did not draft any legal documents and did not solicit witnesses

to testify on Attorney Polk's behalf or prepare any witnesses to

testify.     The referee found, however, that prior to the hearing,

Attorney    Polk    had    specifically          discussed         with       Attorney      Riley
that Attorney Polk was concerned about not having disclosed his

employment    with      the    new     Eisenberg        firm       to    the     OLR    in   the

reinstatement investigation.

      ¶12   The evidentiary hearing before Judge Flynn took place

on September 6, 2006.            Despite the initial understanding that

Attorney Riley would act as only a "second chair," he took the

lead role in presenting Attorney Polk's case at the hearing.                                  He

handled the direct and cross-examination of all witnesses, made


                                             7
                                                                   No.     2010AP2942-D



and responded to objections, argued legal issues, and presented

closing argument in favor of Attorney Polk's reinstatement.

      ¶13   Some    understanding       of   the     flow    of    the    hearing    is

necessary to understand the charges against Attorney Riley and

his arguments against those charges.               Although Attorney Polk, as

the petitioner for reinstatement, bore the burden of proof, the

parties and the referee agreed to hear first the testimony of a

police officer who had been involved in issuing the citation for

loitering-illegal drug activity to Attorney Polk so that the

officer would not need to wait through other testimony and could

return to his police duties.             The OLR's attorney conducted the

direct examination of the officer, and Attorney Riley cross-

examined the officer on behalf of Attorney Polk.

      ¶14   After the completion of the officer's testimony, the

hearing returned to the standard procedure, and Attorney Riley

proceeded to present evidence on Attorney Polk's behalf.                            The

first witness he called was Attorney Polk.                    Presumably because

the referee had just heard the testimony of the police officer
regarding the events that led to the issuance of the citation

for   loitering-illegal        drug     activity,      Attorney          Riley    began

Attorney    Polk's        direct   examination        not     with        the    normal

background questions, but rather with a substantial number of

substantive   questions       regarding      those    same    events.           Attorney

Riley's questions and Attorney Polk's responses on this subject

occupied approximately ten pages of the hearing transcript.

      ¶15   The    next    topic   on   which      Attorney       Riley    questioned
Attorney Polk was the various traffic citations he had received,
                                         8
                                                                   No.     2010AP2942-D



including     the     multiple     offenses     for     having     driven       with     a

suspended     or     revoked     driver's     license.         This      also    was     a

substantial     discussion,       occupying        approximately      12    pages       of

transcript.

       ¶16   Attorney    Riley     then     turned    the     questioning        to    the

topic   of   the     civil   judgments      that     had    been   entered      against

Attorney     Polk.      After     eliciting    some        information     about       the

status of those judgments, Attorney Riley asked Attorney Polk a

series of questions regarding his ability or inability to have

satisfied those judgments over the preceding years.                             Attorney

Polk    testified      generally     that      during       the    period       of     the

suspension of his law license, the jobs he had held were non-

professional jobs with limited rates of compensation.                           Attorney

Polk further testified that he had used the money he had earned

to provide for his family rather than to satisfy the judgments

that had been entered against him.                   Attorney Riley asked two

more questions that were clearly intended to allow Attorney Polk

to repeat and emphasize that his lack of income had been the
reason for not paying the judgments.                   It was after these two

questions that Attorney Riley asked Attorney Polk to summarize

his employment history in the following exchange, which is the

basis for the charges in this disciplinary proceeding:

       Q.    And I know you touched on it earlier, but can you
             tell the Court what kind of jobs you've had since
             the loss of your [law] license.    What have you
             done?

       A.    Worked as——worked for 7-Up Bottling loading
             trucks, riding a forklift.   Worked at a video
             distribution  center,  doing   everything from
                                          9
                                                                  No.     2010AP2942-D


            sweeping the floors to loading trucks.     At one
            point in time, for a period of time, I worked for
            Progressive Training Consultants.    During that
            period I did some consulting work on the
            Marquette Interchange.   But for the most part,
            I've had labor related, you know, jobs, warehouse
            type of work.
     ¶17    Importantly, Attorney Polk's answer did not make any

mention of his employment with the new Eisenberg firm.                         Attorney

Riley did not ask any follow-up questions to bring out that fact

or to clarify that Attorney Polk's answer was not complete.

Attorney Riley stayed with the same subject matter regarding the

unpaid   judgments,      but   he    moved    on   to    asking   about        specific

judgments and whether they had been satisfied.

     ¶18    On cross-examination, the OLR's counsel asked Attorney

Polk a lengthy series of questions concerning whether during the

suspension of his license to practice law (1) he had attempted

to practice law, (2) he had held himself out as an attorney, (3)

he had provided legal advice to anyone, (4) he had done any

legal research, or (5) he had engaged in any "law work activity"

or   "any    work   normally         performed     by    clerks      or       paralegal

personnel."    Attorney Polk responded negatively to each of these

questions.     He   again      did    not    mention    his   work      for    the    new

Eisenberg firm.

     ¶19    Attorney Riley's redirect examination of Attorney Polk

did not did not include any questions regarding Attorney Polk's

employment history.        It focused solely on why Attorney Polk had

not contested the loitering citation.

     ¶20    Following the hearing, Judge Flynn issued a report and
recommendation,     as    requested      in    this     court's   June        23,    2006

                                         10
                                                                            No.     2010AP2942-D



order.        Because Attorney Polk did not disclose his employment

with    the    new    Eisenberg        firm,       Judge   Flynn's          report    did     not

discuss the impact of Attorney Polk's work on legal matters

while suspended on his suitability for reinstatement.                                    Judge

Flynn, however, did comment in several parts of his report on

Attorney      Polk's       employment        history     generally          when    discussing

Attorney       Polk's      claim      that    he    lacked     funds        to    satisfy     the

judgments      that       had   been    entered      against         him.        Specifically,

Judge Flynn stated that, given Attorney Polk's testimony at the

hearing, the jobs he had held during his suspension "had been

for low wages" and that Attorney Polk had used the money he had

earned to support his family.                  In addition, Judge Flynn accepted

Attorney      Polk's       testimony     that       he   had    not    been        employed    or

sought employment for the last six months because he had been

waiting       for    his    license     to    practice         law    to    be     reinstated.

Although       the      referee        generally         accepted          Attorney     Polk's

testimony regarding his employment history and the low wages he

had    earned,      the    referee      nonetheless        rejected         Attorney    Polk's
claim that he had been financially unable either to pay the

debts in full or to work out a payment plan.                                     The referee's

findings and comments regarding Attorney Polk's job history and

ability to make payments demonstrate that these subjects were a

relevant factor in the referee's ultimate legal conclusion that

Attorney       Polk     did     not    have    a    proper      understanding          of     and

attitude toward the standards that are imposed upon Wisconsin

attorneys.


                                               11
                                                                No.        2010AP2942-D



       ¶21     Ultimately, given the referee's findings, this court

denied        Attorney     Polk's      reinstatement     petition.            In     re

Reinstatement of Polk, 2007 WI 51, 300 Wis. 2d 280, 732 N.W.2d

419.

B. Procedural History of Current Disciplinary Proceeding Against

                                    Attorney Riley

       ¶22     In the course of an investigation in 2008, the OLR

learned       that     Attorney   Polk    had   been    employed      by     the    new

Eisenberg firm in 2005-06 while Attorney Riley had also worked

there.        When the OLR asked Attorney Riley about that fact, he

indicated that he had not known that.                   Attorney Riley claims

that     he    then     investigated     whether     Attorney   Polk        had    been

employed by the new Eisenberg firm.                  Although he asserts that

this was the first time he learned of Attorney Polk's work at

the law firm, he never advised the OLR, Judge Flynn, or this

court    at     that     time   that   Attorney    Polk's   testimony         at    the

September 6, 2006 hearing had been false or misleading because

of the omission of his employment at the new Eisenberg firm.
       ¶23     The OLR subsequently filed a formal complaint against

Attorney Riley regarding his actions in representing Attorney

Polk at the September 6, 2006 evidentiary hearing.                    Although the

complaint was framed as a single count, it alleged that Attorney

Riley's actions at the hearing and thereafter had violated three

separate Rules of Professional Conduct for Attorneys.                       First, it




                                          12
                                                                           No.        2010AP2942-D



alleged that Attorney Riley had violated former SCR 20:3.3(a)(4)7

by   offering        material    evidence       that    he    knew    to    be        false   and

failing       to    take    reasonable        remedial       measures.            Second,      it

accused Attorney Riley of violating SCR 20:3.4(b)8                                    by either

falsifying         evidence     or    counseling       or    assisting      a     witness      to

testify       falsely.         Third,    it     alleged       that    Attorney           Riley's

questioning          of    Attorney     Polk    and     his      failure         to     disclose

Attorney Polk's omission of his employment at the new Eisenberg

firm       from    his    response    regarding       his    employment          history      had

constituted          conduct    involving       dishonesty,          fraud,       deceit       or

misrepresentation, in violation of SCR 20:8.4(c).9

       ¶24        As noted above, Attorney Hannah Dugan was appointed as

referee.          After the OLR took depositions of Attorney Riley and

Attorney          Polk,    Attorney     Riley       filed    a   motion          for     summary

judgment.          He argued that he could not have violated the three

identified rules because he had no knowledge of Attorney Polk's

employment at the new Eisenberg firm until the OLR notified him


       7
       Former SCR 20:3.3(a)(4) (effective through June 30, 2007)
provided that a lawyer shall not knowingly "offer evidence that
the lawyer knows to be false. If a lawyer has offered material
evidence and comes to know of its falsity, the lawyer shall take
reasonable remedial measures."
       8
       SCR         20:3.4(b) states that a lawyer shall not "falsify
evidence,         counsel or assist a witness to testify falsely, or
offer an           inducement to a witness that is prohibited by
law; . . .        ."
       9
       SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."


                                               13
                                                                       No.    2010AP2942-D



of that fact in 2008 and because Attorney Polk's testimony about

his employment was not material to the reinstatement proceeding

before Judge Flynn.

    ¶25     Referee Dugan denied Attorney Riley's summary judgment

motion.     She     concluded    that     there   was      a    genuine       dispute   of

material fact regarding whether Attorney Riley had known about

Attorney Polk's employment at the new Eisenberg firm and had

failed to remedy Attorney Polk's false testimony.                              Given the

presence of a dispute of material fact, the referee indicated at

that stage in the proceeding she did not believe that whether

there was a genuine issue of material fact regarding Attorney

Polk's    employment       in   the   Polk     reinstatement           proceeding       was

relevant to whether there was a genuine issue of material fact

in the current disciplinary proceeding against Attorney Riley.

    ¶26     After    the    summary      judgment     motion      was        denied,    the

parties proceeded to a full evidentiary hearing.                             The primary

focus of that hearing was whether Attorney Riley had known at

the time of the September 6, 2006 hearing that Attorney Polk had
been employed by and had performed law-related work for the new

Eisenberg firm, which would have determined whether he knew of

the falsity of Attorney Polk's testimony.

    ¶27     Attorney     Riley    denied       that   he   had        been    aware    that

Attorney Polk had been employed by the new Eisenberg firm in

late 2005 and early 2006.                He acknowledged that he had seen

Attorney   Polk     in   the    firm's    offices     in       that    timeframe,       but

claimed he had believed that Attorney Polk was merely a guest
using the firm's resources either to work on his petition for
                                          14
                                                             No.   2010AP2942-D



reinstatement or to do his own consulting work.              Attorney Riley

explained that the environment at the new Eisenberg firm at that

time was "free-wheeling," with numerous people coming and going

through the firm's offices.

               C. Referee's Report and Recommendation

      ¶28   The referee did not accept Attorney Riley's denials.

In her report the referee pointed out that multiple witnesses

had   testified   that   during   the    relevant   months    of   2005-2006,

Attorney Polk had been at the offices of the new Eisenberg firm

for many hours each week, that he had attended regular firm

meetings of the personal injury team, that Attorney Riley had

seen him at those meetings, that Attorney Polk had met with

clients and had performed other normal law-office activities,

and that the offices of Attorney Riley and Attorney Polk at the

law firm were in close proximity.           While stating that in light

of this evidence it would seem incredible for Attorney Riley not

to have known of Attorney Polk's employment and practice of law

with the new Eisenberg firm, the referee nonetheless believed
that this evidence, by itself, was not sufficient to constitute

the required clear, satisfactory, and convincing evidence the

OLR needed to meet its burden of proof that Attorney Riley knew

Attorney Polk's response at the hearing was false by omission.10



      10
       In an attorney disciplinary proceeding, the OLR must
prove any violation of the Rules of Professional Conduct for
Attorneys by clear, satisfactory, and convincing evidence. SCR
22.16(5).


                                    15
                                                                    No.     2010AP2942-D



       ¶29    The referee also found Attorney Riley's claims that he

had agreed to act only as a second chair and that he had not

prepared for the September 6, 2006 hearing were not as credible

as    Attorney     Polk's      testimony.          In     particular,     the   referee

credited Attorney Polk's statement that prior to the September

6, 2006 hearing, he had specifically discussed with Attorney

Riley his concern that he had not disclosed his employment with

the new Eisenberg firm.11            The referee stated that Attorney Riley

had never directly refuted this statement in his testimony at

the   hearing.          Consequently,       the    referee     further     found     that

Attorney      Riley     had    known    that       Attorney    Polk's     failure     to

disclose     his   employment        with    the    new    Eisenberg     firm   in    his

answer to Attorney Riley's question at the September 6, 2006

hearing had made Attorney Polk's testimony false by omission.

       ¶30    The referee next addressed Attorney Riley's argument

that Attorney Polk's testimony about his employment history was

not   material     to    the   issues       in   Attorney     Polk's    reinstatement

proceeding.
       ¶31    The referee believed that this court's June 23, 2006

order       had    created      a      "hybrid"         standard   for       obtaining

reinstatement         after      a     more-than-three-year             administrative

suspension.        She was unsure whether Attorney Polk's employment


       11
        The referee included the following statement in her
report:     "Brian   Polk's   statements   that  prior to the
[reinstatement] hearing that he raised with Attorney Riley
concerns about not disclosing that he was working at the [new
Eisenberg] firm are forthright, clear and convincing."


                                            16
                                                                         No.   2010AP2942-D



history       would    have     been     material        under    only     this    court's

reinstatement         rules     for     administrative          suspensions       and    this

"hybrid" standard.

    ¶32        She therefore turned to whether the information about

Attorney Polk's employment at the new Eisenberg firm had been

material to the issues identified in this court's June 23, 2006

order.     The referee did not expressly conclude whether Attorney

Polk's employment history was material to the three specific

subjects      set     forth    in   that    order      (i.e.,     loitering       citation,

traffic violations, and unpaid civil judgments).                          She concluded,

however, that his law firm employment had been material to Judge

Flynn's analysis of the "catch-all" provision in the order ("any

other matter that the referee deems helpful to this court's

decision       of     the     reinstatement         petition").            Specifically,

although the June 23, 2006 order did not expressly direct Judge

Flynn    to    make     findings       regarding       Attorney     Polk's     employment

history       during    his     suspension,       Referee        Dugan    believed       that

information about Attorney Polk's having engaged in law-related
work for a law firm would have been material to the referee's

determination         of    Attorney       Polk's      fitness     to    return     to    the

practice of law.

    ¶33        The referee also discussed that there was no dispute

that in 2008, after having been advised by the OLR that it had

learned of Attorney Polk's employment at the new Eisenberg firm,

Attorney       Riley       testified       that     he    had     conducted       his    own

investigation         and     clearly    knew     at     that    point    that    Attorney
Polk's testimony had been false by omission.                        The referee noted
                                             17
                                                                     No.     2010AP2942-D



that,     despite    being   aware    of    this       false   testimony,      Attorney

Riley did not attempt to remedy the prior false evidence by

advising Judge Flynn, the OLR, or this court.

     ¶34     Having    found    that       Attorney       Polk     had     given    false

testimony     in    response   to    Attorney      Riley's       question     and   that

Attorney Riley was aware of the falsity, and having determined

that Attorney Polk's testimony was material to Judge Flynn's

task in Attorney Polk's reinstatement proceeding, Referee Dugan

concluded that the OLR had met its burden of proof by clear,

satisfactory, and convincing evidence on each of the three rule

violations alleged in this case.                 First, the referee determined

that Attorney Riley had offered false material evidence at the

reinstatement hearing and, after having learned of the falsity,

had failed to take reasonable remedial measures, in violation of

former    SCR 20:3.3(a)(4).          Second,       the    referee    concluded       that

Attorney Riley had violated SCR 20:3.4(b) by having assisted a

witness to testify falsely.            Third, the referee determined that

Attorney     Riley's     involvement            with     Attorney        Polk's     false
testimony     constituted      conduct          involving        dishonesty,       fraud,

deceit or misrepresentation, in violation of SCR 20:8.4(c).12



     12
       The referee noted that this court has held that omissions
that cause a statement to be false can constitute unethical
conduct in violation of SCR 20:8.4(c).       See, e.g., In re
Disciplinary Proceedings Against Knickmeier, 2004 WI 115, 275
Wis. 2d 69, 683 N.W.2d 445, cert. denied, 544 U.S. 1041 (2005);
In re Disciplinary Proceedings Against Urban, 2002 WI 63, 253
Wis. 2d 194, 645 N.W.2d 612.


                                           18
                                                                          No.        2010AP2942-D



       ¶35       Having found violations of all three rules as charged

in the OLR's complaint, the referee recommended that the court

publicly reprimand Attorney Riley, as requested by the OLR.

       ¶36       The referee relied on several cases cited by the OLR

as support for a public reprimand.                       She asserted that some of

those cases involved omissions by counsel that constituted false

evidence         in    violation      of     SCR     20:3.3.       See,     e.g.,        In    re

Disciplinary           Proceedings         Against    McNeely,      2008        WI     91,    313

Wis. 2d 283, 752 N.W.2d 857 (60-day suspension imposed for three

ethical violations, including violations of SCRs 20:3.3(a)(1)

and 20:8.4(c)); In re Disciplinary Proceedings Against Lister,

2007        WI   55,     300    Wis. 2d 326,          731      N.W.2d 254        (five-month

suspension imposed for 17 proven counts of misconduct).13                                     The

referee also pointed to several cases in which attorneys had

been disciplined for having made false statements to tribunals,

in     violation        of     SCRs    20:3.3        and/or      20:8.4(c).              In    re

Disciplinary           Proceedings         Against      Alia,     2006      WI        12,     288

Wis. 2d 299, 709 N.W.2d 399 (90-day suspension where attorney
altered exhibit and used it to elicit false testimony at trial);

In re Disciplinary Proceedings Against Kalal, 2002 WI 45, 252


       13
       Although this court spoke of the fact in the Lister
opinion that Attorney Lister had not indicated to the circuit
court that he was unsure of a fact stated in an argument, that
was not really an omission case because Attorney Lister made an
affirmative representation to the circuit court that was simply
contrary to fact.    His statement was not false or misleading
because of an omission of another fact.   300 Wis. 2d 326, ¶¶9,
64.


                                               19
                                                                       No.    2010AP2942-D



Wis. 2d 261, 643 N.W.2d 466 (attorney publicly reprimanded for

making false statement during appellate oral argument); Public

Reprimand      of     Holly    L.   Bunch,     No.    2009-12    (consensual        public

reprimand imposed on prosecutor for misrepresenting to a jury

that the defendant had never previously denied committing the

crime when prosecutor knew of police reports that referenced

such           denials)(electronic                   copy         available                at

https://compendium.wicourts.gov/app/raw/002196.html).

       ¶37    In addition, the referee noted two aggravating factors

identified       by    the     OLR:      (1)      Attorney      Riley's      refusal      to

acknowledge the wrongful nature of his conduct, and (2) his

prior private reprimand for a lack of diligence and a failure to

explain the legal options to clients.                        Although the OLR had

asserted      that     there    were   no    mitigating       factors,       the   referee

concluded that Attorney Riley's full cooperation with the OLR in

the present disciplinary process should be acknowledged.

                    II. ANALYSIS OF ATTORNEY RILEY'S APPEAL

                      A. Appeal of Summary Judgment Denial
       ¶38      Attorney Riley appealed from both the referee's order

denying his motion for summary judgment and the referee's final

report    and       recommendation.          He    challenges     a    number       of    the

referee's findings of fact and raises a host of arguments as to

why he should not be found to have violated any of the three

ethical rules cited in the OLR's complaint.

       ¶39    Several     of    the    legal      issues    identified       by    Attorney

Riley    in   connection        with   the     summary      judgment    decision         also


                                             20
                                                                        No.        2010AP2942-D



apply to the referee's final report.                   We will address them in

this portion of our opinion.

       ¶40    The first subject we address is the standard by which

we review the referee's denial of Attorney Riley's motion for

summary judgment.         The parties agree that the court should use

the    same     methodology    and    standard        for     reviewing            grants    or

denials of summary judgment as are used in civil actions.                                   See

Wis.    Stat.    § 802.08     (setting       forth    standard         for     granting       a

summary       judgment    motion);      see,        e.g.,     Beidel          v.     Sideline

Software, Inc., 2013 WI 56, ¶33, 348 Wis. 2d 360, 842 N.W.2d 240

(appellate court reviewing civil cases applies same standard and

methodology       used   by   circuit    court);        Green         Spring        Farms    v.

Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

       ¶41    The court has referenced motions for summary judgment

and    referee    decisions    on    such     motions       in   prior        disciplinary

cases and has implied that such decisions should be reviewed

using the same standard applied by circuit courts and appellate

courts in "normal" civil actions.                  See, e.g., In re Disciplinary
Proceedings       Against     Humphrey,        2012     WI       32,     ¶¶60-62,           339

Wis. 2d 531,      811    N.W.2d 363     (dismissing         charge      for        which     the

referee granted the OLR summary judgment because the admitted

allegations of the complaint were an insufficient basis to find

a violation).        We therefore will utilize that methodology and

standard of review in reviewing the referee's summary judgment

decision in this case.

       ¶42    Attorney    Riley      makes     a     number      of    arguments            that
challenge the legal sufficiency of the OLR's claims and the
                                         21
                                                                     No.    2010AP2942-D



referee's legal analysis of those claims.                  Two of his arguments

are   related    and    concern    the     materiality        of    Attorney      Polk's

testimony      about     his     employment       during      his     administrative

suspension.      Attorney Riley asserts that, regardless of whether

Attorney    Polk's      answer    about    his     employment        was    false     and

whether Attorney Riley knew of the falsity of that answer, there

can be no violation of the three ethical rules cited by the OLR

because Attorney Polk's statement was not material to the issues

before Judge Flynn in the reinstatement proceeding, and only

material falsehoods give rise to ethical violations.

      ¶43   Attorney      Riley        contends    that       because       the     rules

regarding      reinstatement        petitions       following         administrative

suspensions      of    more     than     three    years       do    not     require    a

description of the petitioning attorney's business activities

during   the    suspension,      such     information      was      not    required    in

Attorney Polk's reinstatement proceeding and the information he

did provide about his employment was therefore not material or

relevant to that proceeding.
      ¶44   Attorney Riley acknowledges, however, that this court

in its June 23, 2006 order identified three subjects on which

the referee was to receive evidence and about which he was to

make factual findings: (1) the number and type of citations or

convictions      for     motor     vehicle        offenses,         (2)     the     facts

surrounding     the    incident    for    which    Attorney        Polk    received     a

citation for loitering-illegal drug activity, and (3) the facts

concerning      the    nature    and    status     of   any      outstanding      civil
judgments against Attorney Polk.               Attorney Riley contends these
                                          22
                                                                      No.       2010AP2942-D



were the only matters at issue during the reinstatement hearing

and that Attorney Polk's testimony regarding what jobs he had

held during his administrative suspension was not material to

any of these three subjects.              He repeatedly describes Attorney

Polk's   employment      testimony       and     the   question       he        asked   that

elicited this testimony as merely "boilerplate" or "background,"

implying that it was mere context or pleasantry that had no

effect   on    the    substantive        issues    that    Judge       Flynn       was    to

consider.      According to Attorney Riley, since Attorney Polk's

testimony about his employment was not material to the three

subjects identified in our referral order, he had no duty under

former SCR 20:3.3(a)(4) to remediate and cannot be found to have

violated that rule.

    ¶45       To the extent the OLR argued before the referee that

Attorney Polk's testimony was material because it fell under the

"catch-all"     language      in   the    court's      June     23,     2006       order,14

Attorney      Riley   contends     that     relying       on    such        a    catch-all

provision     would    have    made      everything       Attorney      Polk       uttered
material.      He asserts that this would make him and all other

Wisconsin attorneys liable for any false or misleading statement

made by their clients at any stage in a lawsuit.                       He argues that

a litigator would need to analyze every statement made by the

litigator's     client   or    witness      in    order    to   determine          whether


    14
       On appeal the OLR disclaimed any intention to use the
catch-all provision in the court's June 23, 2006 order as the
basis for the materiality of Attorney Polk's omission.


                                          23
                                                                     No.     2010AP2942-D



there was a potential discrepancy that needed to be remediated.

Moreover,       since    the     duty        to        remediate      under       former

SCR 20:3.3(a)(4) did not terminate at the end of the case or

representation, the lawyer would continue to have an obligation

to explore facts and issues and potentially to notify the court

long    after    the    lawyer    no    longer         represented         the   client.

Moreover, he asserts that this ongoing duty would apply even

when the client lost in the litigation and correcting the false

or misleading statement could therefore have no potential impact

on the case.       He contends that this is an impossible standard

for any litigator in this state to satisfy, and that nearly

every litigator in practice in this state would have violated

that standard at some point in his/her practice.

       ¶46   In a related vein, Attorney Riley criticizes Referee

Dugan for stating that Judge Flynn and this court had created a

"hybrid"     reinstatement       standard         in    the   Polk     reinstatement

proceeding so that she could find Attorney Polk's testimony to




                                        24
                                                          No.     2010AP2942-D



be material to that proceeding.15         According to Attorney Riley,

if this court did, in fact, create a "hybrid" standard in its

subsequent decision denying Attorney Polk's petition, as Referee

Dugan believes, he cannot be sanctioned for being ignorant of a

materiality standard that had not been established at the time

of the September 2006 hearing before Judge Flynn.

    ¶47    We   conclude   that   the    omitted   information     regarding

Attorney   Polk's   employment    with    the   new   Eisenberg    firm   was

material to the task this court gave to Judge Flynn and to this

court's consideration of Attorney Polk's reinstatement petition.

    15
        Referee Dugan believed that there was a gap in this
court's   rules   regarding    what  standard  to   apply  to   a
reinstatement petition following an administrative suspension of
more than three years. She indicated that it was not initially
clear in the Polk reinstatement matter whether to apply the
standards that govern reinstatement petitions following a
disciplinary suspension of more than six months, see SCRs 22.29-
22.33, or the standards that govern reinstatement petitions
following an administrative suspension of less than three years,
see, e.g., SCR 31.11(1).     In a formal reinstatement proceeding
following a disciplinary suspension of more than six months, the
lawyer's employment during his/her suspension is explicitly a
matter of concern.         See   SCR 22.29(4)(k) (petition for
reinstatement shall contain "[a] full description of all the
petitioner's business activities during the period of suspension
or revocation").    A description of the petitioner's business
activities, however, is not explicitly mentioned in the rules
that relate to reinstatement from an administrative suspension,
whether the suspension is less than or more than three years in
duration.     She believes that since this court ultimately
indicated that an attorney seeking reinstatement from an
administrative suspension of more than three years must
demonstrate good moral character and fitness to practice law,
this court created a "hybrid" standard, which made evidence
regarding his employment activities during the period of
suspension material to his fitness to resume the practice of
law.


                                    25
                                                                           No.       2010AP2942-D



We do not, however, base this determination on a belief that

every subject was material under the catch-all provision in our

June 23, 2006 order.                 We agree with Attorney Riley that the

rules    of     professional         conduct      do       not     make    an    attorney         a

guarantor      of    the     accuracy    of    each        statement        in       a    client's

testimony, nor do we believe that the rules require an attorney

to interrupt depositions or court hearings repeatedly if the

attorney thinks there might be some trivial discrepancy between

what a witness said under oath and what the attorney understood

to be the truth.             We also do not find this omitted information

to be material only because Attorney Polk subsequently admitted

years later that he had practiced law at the new Eisenberg firm.

In other words, it is not necessary that Attorney Riley knew

that Attorney Polk was               practicing        law       (as opposed to simply

working) at the new Eisenberg firm, in order for Attorney Riley

to have violated former SCR 20:3.3(a)(4).

    ¶48        Our    determination      that        the    omitted       information           was

material rests on the language of the order we issued to Judge
Flynn.    One of the topics on which Judge Flynn was to receive

testimony and for which he was to make recommendations to this

court    was    Attorney       Polk's    nonpayment           of    a     number         of   civil

judgments.          Judge Flynn was to determine the status of those

judgments.           This    obviously    included           why    a     number         of   those

judgments had not been satisfied and were still outstanding.

    ¶49        Attorney Polk's defense on this issue was that the

judgments      had     not    been    paid     due     to    his     lack       of       financial
resources.       Whether he had been employed and what types of jobs
                                             26
                                                                       No.       2010AP2942-D



he had held during the period of his administrative suspension

(whether     minimum-wage,           menial       positions       or         higher-wage,

professional       positions)        were    therefore      matters          of        central

importance to the task given to Judge Flynn.                       If Attorney Polk

had been able to obtain only minimum wage or part-time jobs,

that fact would have bolstered his argument that he had been

financially unable to pay his legal debts.                       On the other hand,

if he had held a position with a law firm, even a non-attorney

position, that would have implied that he was earning a somewhat

higher wage and could have made at least some payments of some

amount toward his past debts.                 A deliberate choice not to pay

one's     legal    obligations        reflects     far   differently              on     one's

respect    for    the   law    and    the    legal   system       than       a    financial

inability to pay one's debts.

    ¶50     Attorney Riley's own questioning of Attorney Polk at

the September 2006 hearing and his closing argument at the end

of that hearing demonstrate the materiality of Attorney Polk's

employment    to    one   of    the    subjects      that   Judge       Flynn          was   to
consider.

    ¶51     First, to the extent that Attorney Riley characterizes

Attorney Polk's testimony regarding the jobs he held as merely

"background"       information        in     response       to     a     "boilerplate"

question, the transcript of the reinstatement hearing undercuts

this characterization.           As described above, Attorney Riley did

not begin his direct examination of Attorney Polk by asking a

series of general background questions regarding Attorney Polk's
address,     education,        employment        history,     etc.           Rather,         he
                                            27
                                                                        No.     2010AP2942-D



immediately       proceeded     to     a     series       of    substantive      questions

regarding the circumstances surrounding Attorney Polk's receipt

of   the    citation     for   loitering-illegal               drug   activity    and   his

multiple violations of the traffic laws.                        Only after exhausting

his questioning on those two substantive topics, which take up

approximately 22 pages of transcript, did Attorney Riley ask a

series of questions that were clearly designed to allow Attorney

Polk to testify that he could not have paid the several civil

judgments that remained outstanding because the types of non-

legal      jobs   he    had   taken   during        his    suspension     had     provided

insufficient income to cover his family's living expenses.                              The

question from Attorney Riley that elicited Attorney Polk's false

response was a part of that series of questions regarding the

reasons why the judgments had remained unsatisfied.                              Moreover,

it was not even the first question in that series.                            The question

therefore was clearly not a boilerplate question that lawyers

often ask merely to make a witness comfortable and to provide

some general background at the start of a witness's testimony.
It   was      a   substantive         part     of     an       intentionally       crafted

presentation       to    explain      Attorney        Polk's      nonpayment       of   the

multiple civil judgments against him.

      ¶52     Further, asking this question was not the only time

that Attorney Riley brought Attorney Polk's employment history

to the referee's attention.                Indeed, in his closing argument at

the hearing, Attorney Riley argued that Attorney Polk had always

intended to pay off all of the outstanding judgments, but that


                                             28
                                                       No.   2010AP2942-D



he had been unable to do so because of the type of jobs he had

been able to find.16

       ¶53   Because we determine that the omission of any mention

of having worked for the new Eisenberg firm in Attorney Polk's

testimony regarding his employment was material to his ability

to pay the civil judgments that were outstanding against him, we

need not address whether there is a difference under the rules

of professional conduct regarding the scope of permissible work

for an attorney subject to a disciplinary suspension versus an

attorney subject only to an administrative suspension.          We also

do not need to address the referee's contention that the court

created a "hybrid" standard for obtaining reinstatement after

lengthy administrative suspensions or Attorney Riley's criticism

of the idea of a hybrid standard.        Contrary to Attorney Riley's

claim, Attorney Polk's false testimony did not become material

only    because   of   this   court's   subsequent   decision   denying

Attorney Polk's reinstatement petition; it was material from the

beginning.



       16
       Attorney Riley's closing argument included the following
explicit reference to Attorney Polk's inability to pay the
judgments because of the low-paying jobs he had taken during his
suspension:

       It   has   been  his  intent,   even  from   the Ford
       satisfaction, to get these judgments paid off. He has
       the mindset that he wants to work out payment
       arrangements with them.   But so far, it's just been
       difficult for him because of his employment type
       situation.


                                   29
                                                                         No.        2010AP2942-D



       ¶54     Moreover, the fact that this court ultimately denied

Attorney Polk's petition does not erase the materiality of the

testimony.       A false statement made to influence a tribunal does

not    become       less   false       or   less    harmful      to     the    adjudicative

process       because      the    tribunal     ultimately        decides       against       the

person giving the false testimony on other grounds.                             See Douglas

R.     Richmond,      Brian       S.     Faughnan,        and    Michael        L.     Matula,

Professional Responsibility in Litigation 523 (2011) ("A lawyer

may be found to have violated either rule [current ABA Model

Rule    3.3    or    3.4(b)]      even      where   the    false      testimony       did    not

affect the outcome of the proceedings.").                         It is not acceptable

to lie to a court or to a referee if your lie does not cause you

to win.

       ¶55     Attorney Riley makes another legal argument about the

scope of former SCR 20:3.3(a)(4), although he frames it as a

factual argument.                Specifically, he asserts that he did not

"offer" false evidence to the referee because he simply asked

what he calls "an open-ended question about [Attorney Polk's]
employment,"         to     which       Attorney       Polk      gave      a    "narrative"

description of his jobs.                 Attorney Riley implies that there can

be a violation of former SCR 20:3.3(a)(4) only if an attorney

actively       elicits      false      testimony,      for      example,       by    asking   a

witness       leading      questions        designed      to    lead    the     witness       to

present the false statement.                   He offers no legal authority for

this    position,       other     than      that    the   rule     speaks      in    terms    of

"offering" false evidence.


                                               30
                                                                                No.     2010AP2942-D



       ¶56    We     acknowledge           that        the    term       "offer"        in   former

SCR 20:3.3(a)(4)          has       not    been    interpreted           in     prior    Wisconsin

disciplinary decisions.                   Indeed, it does not appear that the

term    "offer"          in    the        1983     version         of     the     American        Bar

Association's (ABA) Model Rules of Professional Responsibility,

on    which   former          SCR    20:3.3(a)(4)            was    based,       has     been     the

explicit       focus          of      a     disciplinary                decision        in      other

jurisdictions.

       ¶57    It is equally true, however, that the comments to the

rule and court decisions from other states have provided notice

that a lawyer has a duty to remediate false testimony given by a

client, regardless of the manner in which the false testimony

was given.         The ABA comment to 1983 Model Rule 3.3 states that a

lawyer must take remedial measures "[w]hen false evidence is

offered by the client."               ABA Model Rules of Prof'l Conduct R. 33

cmt. (1983).

       ¶58    We    conclude         that        under       the   facts        of    this    case,

Attorney Riley "offered" false material testimony for which he
had a duty to take reasonable remedial measures under former

SCR 20:3.3(a)(4) when his client omitted an important fact from

his    answers      on    a    subject       that      was     clearly        material       to   the

hearing conducted by Judge Flynn.

       ¶59    We    note      that    the        current      version      of    the     Wisconsin

rule, which has been renumbered as SCR 20:3.3(a)(3), makes clear

that a lawyer has a duty to take remedial measures whenever (1)

false testimony or evidence is presented (i.e., "offered") by
the lawyer, the lawyer's client, or a witness called by the
                                                  31
                                                       No.    2010AP2942-D



lawyer, (2) the false testimony is material to the proceeding in

which it is presented, and (3) the lawyer knows of the falsity.17

The duty to take remedial measures does not arise only when the

lawyer has affirmatively elicited the false testimony through

pointed questions.

    ¶60   Attorney Riley also argues that he should have been

granted summary judgment because there was insufficient evidence

to create a genuine issue regarding his knowledge of Attorney

Polk's employment at the new Eisenberg firm and thus, of the

falsity of Attorney Polk's answers at the reinstatement hearing.

    ¶61   The first question that must be answered here is what

level or type of knowledge is required.          Was the OLR obligated

to provide evidence that Attorney Riley should have known of the

omission in Attorney Polk's answer or was it required to provide

evidence and reasonable inferences that Attorney Riley actually

knew of Attorney Polk's employment at the new Eisenberg firm and

    17
       The   current   version   of    SCR   20:3.3(a)(3)    provides   as
follows:

    A lawyer shall not knowingly:

    . . .

         (3) offer evidence that the lawyer knows to be
    false. If a lawyer, the lawyer's client, or a witness
    called by the lawyer, has offered material evidence
    and the lawyer comes to know of its falsity, the
    lawyer   shall  take   reasonable  remedial  measures,
    including, if necessary, disclosure to the tribunal.
    A lawyer may refuse to offer evidence, other than the
    testimony of a defendant in a criminal matter that the
    lawyer reasonably believes is false.


                                  32
                                                                       No.     2010AP2942-D



of the omission of that information from Attorney Polk's answer?

Attorney Riley argues that the OLR was required to show his

"actual knowledge" of the falsity of Attorney Polk's response.

The    OLR   agrees       that    "actual         knowledge"    is    the     appropriate

standard under former SCR 20:3.3(a)(4), although it notes that

such    actual     knowledge       can      be    inferred     from   the     surrounding

circumstances.        We concur that the applicable standard under

former SCR 20:3.3(a)(4) is actual knowledge by the attorney.

The ABA's preamble to the 1983 Model Rules, upon which former

SCR 20:3.3(a)(4) was based, states that the various forms of the

word    "know"     usually       denote      actual    knowledge      of    the    fact    in

question.18        ABA Model Rules of Prof'l Conduct, pmbl. (1983).

There is no reason to use a different standard of knowledge in

this context.        The OLR is also correct, however, that knowledge

can be inferred from the circumstances.                      Moreover, since we are

addressing this in the context of a summary judgment motion, the

OLR correctly points out that the evidence presented and the

inferences to be drawn from that evidence were to be viewed most
favorably     to    the    OLR    as       the    non-moving    party.        See,       e.g.,

Affeldt v. Green Lake Cnty., 2011 WI 56, ¶59, 335 Wis. 2d 104,

803 N.W.2d 56.

       ¶62   We    turn     now       to    Attorney    Riley's       claim       that    the

evidence      presented          at        the    summary      judgment       stage       was


       18
       In the current version of the Wisconsin Rules of
Professional Conduct for Attorneys, this definition is now
codified in a specific rule, SCR 20:1.0(g).


                                                 33
                                                               No.   2010AP2942-D



insufficient under former SCR 20:3.3(a)(4) to show his actual

knowledge of Attorney Polk's employment at the new Eisenberg

firm.        Attorney   Riley   asserts     that   the   OLR   presented    only

Attorney Polk's speculation as to what Attorney Riley actually

knew and that any opinions offered by Attorney Polk on this

issue were inadmissible as lay opinions.

       ¶63    We conclude that there was a genuine issue of material

fact on the issue of Attorney Riley's knowledge, and his summary

judgment motion was therefore properly denied.                  Attorney Polk

gave the opinion in his deposition testimony that Attorney Riley

knew that he was employed by the new Eisenberg firm.                   Attorney

Polk    was    competent   to   give   such    a   lay   opinion     because   he

explained that it was based on his personal perceptions of the

daily activities at the firm.          He said that during the relevant

time period, he was at the firm 50-60 hours per week, working in

an office assigned to him, walking around with client intake

packets, making telephone calls, and going back and forth to and

from    the   copier.      Moreover,   he     specifically     testified    that
Attorney Riley "absolutely" saw him doing all of these things.

Attorney Polk's personal observations of Attorney Riley seeing

him do all of these tasks that correspond with working in a law

firm provided Attorney Polk with a proper basis for opining that

Attorney Riley knew he was working for the firm in at least some

capacity.      Indeed, Attorney Polk's daily experiences in the firm

during the period of his employment led to him to state that it

was common knowledge among all individuals connected with the
firm at that time that Attorney Polk was employed by the firm
                                       34
                                                              No.     2010AP2942-D



and indeed was representing himself as an attorney to people

outside the firm.

    ¶64     In   addition,    although      Attorney    Riley       attempts     to

attack Attorney Polk's credibility, Attorney Polk did explicitly

testify at his deposition that he had at least one discussion

with Attorney Riley prior to the reinstatement hearing regarding

his concern about having held himself out as an attorney while

he had been employed by the new Eisenberg firm.                     Contrary to

Attorney Riley's arguments, the referee was not free to ignore

or discount this statement when determining whether there was a

genuine     dispute    of   material    fact   in     the   summary     judgment

context.

    ¶65     These statements by Attorney Polk and the reasonable

inferences that could be drawn from them were sufficient to

establish    clearly    and   convincingly     that    Attorney      Riley     knew

before the September 6, 2006 reinstatement hearing that Attorney

Polk had been employed by the new Eisenberg firm during the

period of his administrative suspension.
    ¶66     Attorney Riley also argues that he should have been

granted summary judgment with respect to the OLR's claim that he

had violated SCR 20:3.4(b), which provides that a lawyer "shall

not falsify evidence, counsel or assist a witness to testify

falsely, or offer an inducement to a witness that is prohibited

by law."      SCR 20:3.4(b).      In this case, there is no evidence

that Attorney Riley personally falsified any evidence or offered

a prohibited inducement to Attorney Polk for his testimony at
the reinstatement hearing.         The question in this instance is
                                       35
                                                                  No.    2010AP2942-D



whether Attorney Riley's conduct at the reinstatement hearing

constitutes      counseling    or       assisting     a     witness     to   testify

falsely.

    ¶67     Attorney Riley asserts that the Wisconsin disciplinary

decisions that have found a violation of SCR 20:3.4(b) have

involved situations where the lawyer either actively instructed

or coached a witness to lie or personally falsified evidence.

See, e.g., Alia, 288 Wis. 2d 299 (altering expert report without

expert's    permission);      In   re     Disciplinary      Proceedings      Against

Arthur, 2005 WI 40, 279 Wis. 2d 583, 694 N.W.2d 910 (instructing

client to lie); In re Disciplinary Proceedings Against Salmen,

187 Wis. 2d 318, 522 N.W.2d 779 (1994) (attorney testifying that

letter he back-dated was genuine).                Attorney Riley contends that

the court's previous application of the rule to these situations

means that the rule is limited to such instances.                     Because there

is no evidence that he instructed Attorney Polk to omit any

mention of his employment at the reinstatement hearing, Attorney

Riley argues that this charge should have been dismissed.
    ¶68     We   acknowledge       that    this    court    has   not    previously

decided    whether   SCR   20:3.4(b)       applies     to    situations      where   a

lawyer's client testifies falsely, but there is no evidence of

prior coaching by the lawyer or other assistance by the lawyer

to permit the false testimony.

    ¶69     We agree with Attorney Riley that the language of the

rule ("counsel or assist a witness") indicates that some action

by the lawyer prior to or at the time of the witness's false
testimony is required.         In our view, failing to take action in
                                          36
                                                                       No.     2010AP2942-D



the   face    of    another's      decision      to    give    false      testimony       is

different     from      "assisting"        another         person    to      give     false

testimony.        If SCR 20:3.4(b) is interpreted broadly to cover all

situations where a witness has testified falsely and the lawyer

fails to take remedial measures, then it would appear to cover

the same ground as former SCR 20:3.3(a)(4), and there would be

no need to have two separate rules.

      ¶70    We     believe     that       SCR       20:3.4(b)       should        not     be

interpreted to reach the conduct that is shown on this record.

There was no evidence in the summary judgment materials (or even

in    the    evidence    presented         at    the       subsequent        disciplinary

hearing)     that    Attorney      Riley    advised         Attorney      Polk      not    to

mention his work at the new Eisenberg firm, planned a way in

which Attorney Polk could omit that information in his testimony

at the reinstatement hearing, or even knew that Attorney Polk

intended     to     provide    a    list    of       his    employers        during       his

suspension that would omit the new Eisenberg firm.                                 Attorney

Polk stated that although he did at some point prior to his
reinstatement hearing discuss with Attorney Riley his concern

about having represented himself as an attorney employed by the

new   Eisenberg      firm,    there    is       no   indication      in      the    summary

judgment record here that the two of them took the step of

discussing how Attorney Polk should address that concern in his

reinstatement        hearing       testimony.              Indeed,     Attorney          Polk

testified that he and Attorney Riley never had a preparation

session to discuss his upcoming testimony at the reinstatement
hearing.      The most the record in this disciplinary proceeding
                                           37
                                                                            No.     2010AP2942-D



discloses is that Attorney Polk gave false testimony at the

reinstatement     hearing        and     that      Attorney       Riley       knew       of    the

omission.      While Attorney Riley's knowledge of the falsity of

Attorney Polk's answer at the time the answer was given was

sufficient to require him to take reasonable steps to remediate

the   false    testimony        and     to    support       a    violation          of    former

SCR 20:3.3(a)(4)     for        not    doing       so,    we     do    not     believe        that

Attorney Riley's knowledge, by itself, constitutes counseling or

assisting      Attorney       Polk's     false        testimony        in     violation         of

SCR 20:3.4(b).      Consequently, we conclude that the OLR's charge

of a violation of SCR 20:3.4(b) must be dismissed.

      ¶71     Attorney    Riley's        final        argument        regarding          summary

judgment is comprised of merely four sentences claiming that

there was simply no evidence of dishonesty, fraud, deceit, or

misrepresentation,            such     that     he       could    not        have     violated

SCR 20:8.4(c).           As    an     initial        matter,      this       claim       is    not

sufficiently developed and could be rejected on just that basis

alone.
      ¶72     Even reaching the merits, we conclude that there was

sufficient evidence of a violation of this rule to warrant an

evidentiary hearing.            The language of SCR 20:8.4(c) is broad,

covering      "conduct        involving        dishonesty,            fraud,      deceit        or

misrepresentation."              SCR    20:8.4(c)          (emphasis         added).            In

addition, it should be noted that, like former SCR 20:3.3(a)(4),

this rule covers not only affirmative misrepresentations, but

also deceitful omissions.               See Knickmeier, 275 Wis. 2d 69, ¶93.
While in this case the primary deceitful words came out of the
                                              38
                                                                    No.     2010AP2942-D



mouth of Attorney Polk and not the mouth of Attorney Riley, as

discussed above in connection with the evidence to support a

prima facie case of a violation of former SCR                            20:3.3(a)(4),

there was evidence at the summary judgment stage that Attorney

Riley knew of the deceitful omissions but did nothing to remedy

the falsehood.        To the contrary, the transcript shows that he

pushed on with the reinstatement hearing and even argued in

closing argument to Judge Flynn that Attorney Polk had always

intended to pay off the outstanding judgments, but had been

unable to do so because of the types of jobs he had been able to

find    during    his      administrative        suspension,        thereby     taking

advantage of the omission in Attorney Polk's testimony.                         In our

view, that evidence is sufficient to qualify as engaging in

conduct involving deceit or misrepresentation.

       B. Appeal of Referee's Final Report and Recommendation

       ¶73   Attorney Riley also raises several challenges to the

referee's final report.              When the court reviews a referee's

final report, it affirms a referee's findings of fact unless
they   are   found    to   be   clearly      erroneous,       but   it    reviews    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.             Although     a     referee      makes     a

recommendation       regarding       an    appropriate    sanction,        which     the

court takes into account, it is this court which ultimately

makes an independent determination of the appropriate level of

discipline given the particular facts of each case.                          Alia, 288


                                           39
                                                                        No.       2010AP2942-D



Wis. 2d 299, ¶88; In re Disciplinary Proceedings Against Widule,

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

      ¶74    Attorney       Riley's       initial        argument       regarding          the

referee's final report is that the referee's credibility finding

regarding     Attorney       Polk's       testimony       was    clearly          erroneous,

particularly       the      referee's       acceptance          of     Attorney       Polk's

testimony     that     he   and    Attorney       Riley    had       spoken       before   his

reinstatement hearing about Attorney Polk's concern over having

represented himself as an attorney during his employment with

the new Eisenberg firm.               Attorney Riley characterizes Attorney

Polk's testimony as "all over the place" and contends that there

was a discrepancy between Attorney Polk's deposition testimony

and his testimony at the disciplinary hearing.                              Attorney Riley

contrasts     Attorney       Polk's      testimony       with    his    own       testimony,

which   he    characterizes         as    consistent       as    well       as    "firm    and

forthright."

      ¶75    We    find     no    legal   basis     to     overturn         the    referee's

credibility determinations with respect to either Attorney Polk
or Attorney Riley.           While all factual findings are subject to

the   clearly      erroneous       standard,       credibility         assessments         are

among the most difficult for a party to overturn because, where

there   is    conflicting         testimony,      the    referee       is    the    ultimate

arbiter of witness credibility.                  In re Disciplinary Proceedings

Against      Riordan,       2012    WI    125,      ¶28,    345        Wis. 2d 42,         824

N.W.2d 441;       In   re   Disciplinary         Proceedings         Against       Pump,   120

Wis. 2d 422,       426,     355    N.W.2d 248      (1984).           Although       Attorney
Riley points to what he perceives as discrepancies in Attorney
                                            40
                                                                             No.     2010AP2942-D



Polk's testimony, Attorney Polk explained at the disciplinary

hearing that he was confused to some extent by the manner in

which the time period had been framed in certain questions.

While Attorney Polk in his hearing testimony indicated that he

did    not   recall       discussing      with        Attorney       Riley    his     law     firm

employment and his resulting concerns during the time he was

actually employed by the new Eisenberg firm, at two separate

junctures in his hearing testimony in this proceeding he clearly

and unequivocally testified that he did have such discussions

with    Attorney          Riley    prior        to     his     reinstatement           hearing.

Moreover, as the referee pointed out, Attorney Polk's testimony

was against his own interest because he had to admit that he had

lied at the reinstatement hearing after having thought about the

issue    and    after      having    discussed          his     concerns       with     another

attorney, all of which is detrimental to any future attempt at

reinstatement by Attorney Polk.                        The referee was entitled to

accept Attorney Polk's testimony on this point and to reject

Attorney       Riley's      claims       to     the     contrary.            The     applicable
standard of review requires that we accept those credibility

findings.

       ¶76     Based in large part on Attorney Polk's testimony, the

referee      therefore       found       that        Attorney    Riley        had     discussed

Attorney       Polk's     law     firm    employment          with    him     prior     to    the

September 2006 reinstatement hearing.                         Because this rests on a

credibility determination that the referee was entitled to make,

this    finding      is    not    clearly       erroneous.            This     finding        also
supports       the   further       finding        that       Attorney        Riley     knew    of
                                                41
                                                                           No.    2010AP2942-D



Attorney Polk's employment with the new Eisenberg firm at the

time of the 2006 reinstatement hearing, at which Attorney Polk

gave a misleading answer to a question posed by Attorney Riley,

as well as multiple cross-examination questions posed by counsel

for   the   OLR.        Attorney    Riley          does    not     claim    that       he   ever

attempted to persuade Attorney Polk to disclose his law firm

employment    to   Judge    Flynn        or    to    take    any     other       measures     to

remediate    Attorney      Polk's      misleading          testimony.            We    conclude

that none of the referee's factual findings on these matters are

clearly erroneous, and we therefore rely on them for our legal

analysis.

      ¶77   Attorney       Riley         also        criticizes            the        referee's

conclusions of law and her discussion of how she analyzed the

evidence     presented      to     her        in    light     of     the     charged        rule

violations.        We    need    not      dwell       on    the     referee's         extended

discussion of the complicating factors present in this case or

the   interplay    between       the     standards          for    reinstatements           from

disciplinary and administrative suspensions.                         The bottom line in
our view is that the facts as found by the referee demonstrate

clearly and convincingly that Attorney Riley violated former SCR

20:3.3(a)(4) by offering material testimony from Attorney Polk

regarding his employment history that Attorney Riley knew to be

false by omission at the time it was given and then failing to




                                              42
                                                               No.    2010AP2942-D



take reasonable measures to remediate that false testimony.19                     We

therefore   agree      with   the   referee's     conclusion    that    Attorney

Riley violated former SCR 20:3.3(a)(4).

      ¶78   Attorney Riley also makes a brief argument that the

referee's   conclusion        and   discussion    of    a   violation       of   SCR

20:8.4(c) lack factual and legal support.                   Like his argument

regarding the referee's summary judgment ruling on this charge,

his argument regarding the referee's ultimate conclusion of a

violation   of   SCR    20:8.4(c)    is   not    well   developed.      For      the

reasons set forth above in connection with the referee's summary

judgment decision, we conclude that the facts as found by the

referee regarding Attorney Riley's knowledge of Attorney Polk's

misleading testimony and Attorney Riley's continuing to advocate

for   Attorney      Polk's     reinstatement       also     support     a    legal




      19
       One of Attorney Riley's criticisms is directed toward the
referee's observation that after the OLR in 2008 told Attorney
Riley that it had learned of Attorney Polk's employment with the
new Eisenberg firm, Attorney Riley did not take remedial
measures at that time by notifying Judge Flynn, this court, or
the OLR that Attorney Polk's 2006 testimony had been false by
omission.   Attorney Riley argues that he had no duty to take
remedial measures at that point because this court had by that
time already denied Attorney Polk's reinstatement petition and
the OLR already knew the relevant facts.     Again, we need not
address whether the rule required additional action by Attorney
Riley in 2008. It is clear from the facts found by the referee
that Attorney Riley knew of the falsity in Attorney Polk's
testimony at the time it was given.      He had a duty to take
remedial measures at that time.      His failure to take proper
actions at that time is sufficient to support a conclusion of a
violation of former SCR 20:3.3(a)(4).


                                       43
                                                                              No.     2010AP2942-D



conclusion    that       Attorney          Riley      engaged    in        conduct     involving

deceit and misrepresentation, in violation of SCR 20:8.4(c).

    ¶79     Finally, Attorney Riley attacks the OLR's process for

investigating and litigating this case, arguing that he never

should have been charged with ethical violations in the first

place because the OLR's investigation was flawed and there was

no cause to proceed.                We need not address these claims in any

detail.     Many of Attorney Riley's claims in this regard, such as

a lack of materiality of Attorney Polk's false testimony, have

already    been    considered            and     rejected   above.            To     the    extent

Attorney    Riley    challenges            the     Preliminary         Review        Committee's

finding of cause to proceed, we believe it is sufficient to note

that the subsequent complaint filed by the OLR survived summary

judgment    and    is    ultimately             resulting       in    a     conclusion        by   a

majority     of    the       court        that     Attorney          Riley     committed         two

violations of the Rules of Professional Conduct for Attorneys.

                               C. Level of Discipline

    ¶80     We    now    turn       to     the    matter    of       the     proper    level       of
discipline that we believe should be imposed for the two ethical

violations we have found.                       The referee has recommended that

Attorney    Riley       be    publicly          reprimanded      for        his     professional

misconduct.         In       addition       to     considering         prior        disciplinary

decisions    cited       by     the       OLR,     the   referee           also     noted    three

aggravating       factors       and       one    mitigating          factor.          The     three

aggravating       factors           were        Attorney    Riley's           prior         private

reprimand, his refusal to acknowledge the wrongful nature of his
conduct,    and    the       harm    to    the     judicial      system        caused       by   his
                                                 44
                                                                No.    2010AP2942-D



misconduct.20      Although     the   OLR    alleged   that     there    were   no

mitigating factors, the referee found that Attorney Riley had

fully cooperated with the OLR's investigation and the litigation

of the disciplinary case, which should be acknowledged.

     ¶81   Attorney     Riley      does     not   challenge     the     referee's

recommendation regarding the appropriate level of discipline,

other than to argue that he committed no misconduct.                  Whether or

not a respondent attorney specifically challenges a discipline

recommendation, however, the court is obligated to conduct its

own analysis of the proper level of discipline.

     ¶82   In    our   view,   a   public    reprimand     is   an    appropriate

sanction   for    Attorney     Riley's      professional    misconduct.         We

believe that a public sanction is necessary to impress upon

Attorney Riley the wrongfulness of his conduct, as well as to

deter both him and other attorneys from engaging in similar

conduct in the future.         Allowing false evidence to be presented

to a tribunal when the attorney knows it is false is a serious


     20
       Specifically, the referee asserted that Attorney Riley
had "misused the justice system" by participating in the
offering of false evidence in an optional reinstatement
proceeding   that  needlessly   resulted  in  review   and  the
preparation of a split decision by this court.   Attorney Riley
objects to this assertion, stating that this court's rules
required it to review and issue a decision on Attorney Polk's
reinstatement petition regardless of whether Attorney Polk made
a false statement at the reinstatement hearing. Attorney Riley
is correct regarding this court's review, but his failure to
take remedial measures harmed the judicial process of reviewing
the petition because this court was forced to review a false
account of the facts.


                                      45
                                                                           No.    2010AP2942-D



ethical violation that undermines the truth-seeking function of

the    entire       judicial    system      and       contradicts      the   ideal       of    an

attorney being an officer of the court as well as an advocate

for a particular client.

       ¶83     We consider a consensual public reprimand accepted by

an    assistant      district        attorney         for   similar   conduct.           Public

Reprimand       of    Holly     L.    Bunch,      No.       2009-12   )(electronic           copy

available                                                                                      at

https://compendium.wicourts.gov/app/raw/002196.html).                                  Although

Attorney Bunch was aware of two police reports stating that a

defendant had expressly denied committing the charged crimes,

she     made    multiple       false      statements          to   the     jury       that    the

defendant had never denied committing the crime until he had

been on the witness stand at trial because those reports had not

been entered into evidence.

       ¶84     Although        Attorney      Riley's          misconduct         is     clearly

serious because it undermined a tribunal's ability to decide a

pending matter based on true and complete information, it is not
more serious than the misconduct committed by Attorney Bunch.

There    is    no    evidence        in   this    record      that    he   conspired         with

Attorney Polk prior to the reinstatement hearing to omit any

reference to Attorney Polk's employment with the new Eisenberg

firm or that he even knew prior to the reinstatement hearing

that Attorney Polk was planning to omit that information from

his testimony.          Attorney Riley's misconduct here was failing to

take any reasonable measures to remediate the false testimony
given by Attorney Polk, his client.                          Consequently, we conclude
                                                 46
                                                                     No.        2010AP2942-D



that a public reprimand is the most appropriate disciplinary

sanction, given the particular facts of this case.

      ¶85    Finally,     we    address    the    issue       of   costs.         Attorney

Riley did not object to the OLR's statement of costs.                            We see no

reason in this case to depart from the court's general practice

of imposing full costs against an attorney who is found to have

committed professional misconduct.                See SCR 22.24(1m).                  Because

two   concurring       justices     also       agree        with   this     conclusion,

Attorney Riley will be obligated to pay the full costs of this

proceeding.

      ¶86    In summary, we conclude that Attorney Riley "offered"

false testimony to the reinstatement referee under former SCR

20:3.3(a)(4) when his client gave false and misleading answers

to a question that he posed and to questions posed by opposing

counsel.      We further conclude, based on the referee's factual

findings, that Attorney Riley knew this testimony was false at

the time it was given.              Attorney Polk's false testimony was

material to the reinstatement proceeding in which it was given
because     it    related      to   his    claimed          inability      to     pay    the

outstanding civil judgments against him, which was one of the

topics      expressly        identified    in     our        order      referring        the

reinstatement matter to the referee.               Because Attorney Riley did

not   take       any   reasonable     measures         to     remediate         the     false

testimony     given     by     Attorney    Polk   and        therefore      offered       by

Attorney Riley, he violated former SCR 20:3.3(a)(4).                             Given his

failure to take remedial measures and his continuing to argue in
the reinstatement proceeding that the jobs Attorney Polk had
                                          47
                                                                    No.    2010AP2942-D



held during his administrative suspension did not provide enough

income for him to have made payments toward the outstanding

civil judgments, Attorney Riley also violated SCR 20:8.4(c).

      ¶87    While two of our colleagues who concur in the mandate

of the court are not willing to sign on to this opinion, the

outcome     of    this     case   should    still      serve   as   a     reminder   to

attorneys in this state that under the current version of the

rule,   SCR 20:3.3(a)(3),         they     have    a   duty    to   take   reasonable

remedial     measures       whenever      they    have   actual     knowledge     that

material testimony given by a client or another witness called

by the attorney is false, either because of an affirmatively

untrue statement or an omission that makes the statement false,

regardless of whether the attorney asked the question that led

to the false testimony.           That standard was met by the particular

facts of this case with respect to false testimony given by

Attorney Riley's client.             This rule, in either its former or

current form, however, does not make an attorney the guarantor

of the factual accuracy of everything that is said by a client
or   other       witness    called   by    the    attorney.         The    attorney's

obligation arises only when the attorney has actual knowledge of

the falsity and only when the false testimony is material to the

proceeding.         When those conditions are present, however, the

lawyer may not just sit silently and allow the false testimony

to mislead the opposing party and the tribunal.                         The lawyer is

not just a zealous advocate on behalf of a client, but also an

officer of the court, who bears obligations to assist the court
in its search for the truth.
                                           48
                                                  No.     2010AP2942-D



    ¶88   IT IS ORDERED that John Kenyatta Riley is publicly

reprimanded for his professional misconduct.

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

of this order, John Kenyatta Riley shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

    ¶90   IT IS FURTHER ORDERED that the director of the Office

of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this order.

    ¶91   REBECCA G. BRADLEY, J., did not participate.




                               49
                                                                  No.   2010AP2942-D.ssa




     ¶92    SHIRLEY    S.    ABRAHAMSON,        J.    (concurring).             I     agree

that a public reprimand and full costs should be imposed.                             I do

not, however, join the opinion of three justices of this court.

The opinion of the three justices is not a majority opinion.                              It

is, in the terminology of the court, a "lead opinion."

     ¶93    The   phrase     "lead    opinion"       is    not,   as    far     as    I   am

aware, defined in our Internal Operating Procedures or elsewhere

in the case law.       Our Internal Operating Procedures (IOP) refer

to "lead opinions," but only in stating that if, during the

process    of   circulating     and       revising        opinions,      "the    opinion

originally circulated as the majority opinion does not garner

the vote of a majority of the court, it shall be referred to in

separate   writings     as   the     'lead     opinion.'"         Wis.    S.    Ct.       IOP

II.G.4.1

     ¶94    I would describe a lead opinion as one that states

(and agrees with) the mandate of a majority of the justices, but

represents      the   reasoning      of    less      than    a    majority       of       the
participating justices.            So, for example, in a case with six

justices participating, if three justices join one opinion, two

justices join the same mandate only or join a different opinion

reaching the same mandate, and one justice dissents, there is a

single mandate, but no majority opinion.                    See Hoffer Props. LLC

v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533.                       Rather, one



     1
       Our internal operating procedures are contained in volume
6 of the Wisconsin Statutes.


                                           1
                                                No.   2010AP2942-D.ssa


of the opinions agreeing with the mandate will be designated the

lead opinion.

    ¶95   The use of the term "lead opinion" without an agreed-

upon definition has the potential to cause confusion among the

bench, the bar, and the public.     Also, the precedential effect

(or lack thereof) of a "lead opinion" is uncertain.        Are lead

opinions in this court comparable to plurality opinions in the

United States Supreme Court?2   Apparently, the court of appeals

considers a plurality decision of this court persuasive but does

not always consider it binding.     See, e.g., State v. King, 205

Wis. 2d 81, 88-89, 555 N.W.2d 189 (Ct. App. 1996) (citing State

v. Dowe, 120 Wis. 2d 192, 194, 352 N.W.2d 660 (1984)).

    ¶96   I write separately to express several concerns.

                                I

    ¶97   The lead opinion is overly lengthy, and gratuitously

addresses too many issues that have not been fully briefed or

carefully studied.   The issues are difficult and of the utmost




    2
       See Marks v. United States, 430 U.S. 188, 193 (1977)
("When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, 'the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgment on the narrowest
grounds . . . .'") (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

     For discussions by this court of the precedential effect of
plurality opinions in the United States Supreme Court, see, for
example, State v. Griep, 2015 WI 40, ¶36, 361 Wis. 2d 657, 863
N.W.2d 567;   State v. Deadwiller, 2013 WI       75, ¶30, 350
Wis. 2d 138, 834 N.W.2d 362.


                                2
                                                                      No.   2010AP2942-D.ssa


importance    to    attorneys         and    disciplinary            proceedings.         The

issues need more consideration.

       ¶98   The issues might be better left for future study by a

committee this court should create to review the entire Rules of

Professional    Conduct        for     Attorneys,        as     I    proposed       in   Rule

Petition 15-01. Instead, the court dismissed the petition.                                The

ruse for dismissal was that the creation of a committee is not a

proper subject for a rule petition.                      For a discussion of the

need for a committee, see my dissent to the order dismissing

Rule           Petitions                    15-01,                  available               at

https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=

pdf&seqNo=158416;         In     re     Disciplinary            Proceedings          Against

Templin, 2016 WI 18, ¶¶55-60, 367 Wis. 2d 351, 877 N.W.2d 107

(Abrahamson, J., concurring); In the Petition for Reinstatement

of Attorney Jeffrey P. Neterval, unpublished order, ¶¶2-9 (Mar.

22, 2016) (Abrahamson, J., concurring); In the matter of the

Reactivation of David W. Klaudt's License to Practice Law in

Wisconsin,      unpublished           order,          ¶¶3-11        (Mar.     22,        2016)
(Abrahamson, J., concurring).

                                             II

       ¶99   This is a landmark case in attorney discipline, as

Justice Prosser has pronounced.                   But its landmark status, from

my   perspective,    is    the    length         of   time     the    instant    case     has

lingered in this court.               I think it wins the prize for taking

longer to decide than any other OLR proceeding I can remember or

find.    It is a prime example of significant, unnecessary delays
in completing a disciplinary matter.                     Delay appears to exist at

                                             3
                                                      No.     2010AP2942-D.ssa


every level of the disciplinary proceedings, but the final delay

at this court in releasing the lead opinion is outrageous.

    ¶100 The attorney's conduct that is the subject of this

proceeding dates back to 2006.           The OLR complaint was filed on

December 1, 2010.      The referee held hearings in February 2012

and issued her report on April 18, 2012.

    ¶101 On October 23, 2012, this court held oral argument in

the instant case.      More than 10 months elapsed before staff

circulated a draft per curiam opinion.         Justice David T. Prosser

circulated the first draft of his dissent to the court on July

31, 2015, almost three years after oral argument and almost two

years after the per curiam was circulated.          The first draft of

my concurrence was circulated on September 14, 2015, almost two

months after the dissent was circulated.         The writings have been

subject to discussion and revision, and this opinion is being

released almost four years after oral argument, almost six years

after the complaint was filed, and almost 10 years after the

conduct at issue.
    ¶102 I favor the court's spending the time needed for each

matter and giving utmost care to each matter.                 Opinions and

orders in cases, rule matters, and disciplinary proceedings are

important to the people directly involved in each case and to

the public.

    ¶103 I strongly support the court's longstanding practice

of honoring a justice's hold and giving a justice time to study

and write separately, but I disfavor the court's inconsistent
treatment   of   requests   to   hold.     Consistency   in    the   court's

                                    4
                                                                       No.    2010AP2942-D.ssa


practice     of    allowing,        disallowing,          and        limiting        holds    is

important for collegiality and fairness to the litigants and

public.      For a discussions of the court's failure to follow

procedures it adopts, see State v. Finley, No. 2014AP2488-CR,

unpublished order (Jan. 11, 2016) (Abrahamson, J., concurring in

part   and   dissenting      in     part);       Wis.     Carry,       Inc.     v.    City     of

Madison,     No.    2015AP146,       unpublished              order    (Jan.     11,       2016)

(Abrahamson, J., concurring in part and dissenting in part);

Regency West Apartments LLC v. City of Racine, No. 2014AP2947,

unpublished order (Jan. 11, 2016) (Abrahamson, J., concurring in

part and dissenting in part).

       ¶104 Although I favor the practice of permitting holds, I

also   strongly      favor       giving   litigants           and     the    public     prompt

decisions.        Thus I again urge the court to create uniform time

limits for court staff and for justices to study the matter and

write.       For    my     repeated       requests,           see,     for     example,       my

concurrences in State ex rel. Nelson v. Wis. Supreme Court, No.

2013AP153-W,       unpublished      order        (Aug.    19,       2015),    and     Koll     v.
Department of Justice, No. 2008AP2027, unpublished order (Oct.

14, 2011).

       ¶105 Neither        the     public,        the     respondent          lawyer,         the

component parts of the disciplinary proceedings, nor the other

lawyers of the state are well served by the long delay in the

instant case and in too many other cases.

       ¶106 The court is considering (in closed conference rather

than in open conference) appointing a committee to review the
procedures    of     the    component       parts        of    the     OLR    and     to     make

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                                                          No.    2010AP2942-D.ssa


recommendations for change.           See Rule Order 15-01, available at

https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=

pdf&seqNo=158416 (stating that dismissal of petition does not

preclude the court from appointing a committee to study the

Office of Lawyer Regulation or the Wisconsin Judicial Code).

Although no committee has been formed as of this date, exploring

ways to avoid unnecessary delay and accelerate the process of

attorney discipline will be an important aspect of any study.

                                       III

       ¶107 To foster transparency and fairness, as well as to

encourage promptness and uniformity in the court's decisions in

discipline cases, I renew my request that the court require the

Clerk of the Supreme Court to make available on the court's

website information about the dates of the relevant steps in

each disciplinary matter, from the filing of the complaint, to

its passage through the component parts of the lawyer regulatory

proceeding, assignment to a court commissioner, assignment for

oral       argument   or   on-brief    consideration,     and     the   court's
ultimate decision.

       ¶108 The United States Supreme Court has similar helpful

information       available    on     its    website    for     litigants    and

interested       persons    about     the    progress   of      petitions    for

certiorari in the Supreme Court.3            See my concurrence in State ex



       3
       I have also suggested that similar information be provided
online for petitions for review, petitions for bypass, and
original actions filed in this court.


                                        6
                                                           No.   2010AP2942-D.ssa


rel. Nelson v. Wis. Supreme Court, No. 2013AP153-W, unpublished

order (Aug. 19, 2015).

      ¶109 For the reasons set forth, I do not join the opinion

of   the   three    justices   and   write    separately   to    set    forth   my

concerns.

      ¶110 I   am    authorized      to   state   that   Justice       ANN   WALSH

BRADLEY joins Part I of this opinion.




                                          7
                                                   No.   2010AP2942-D.awb




    ¶111 ANN   WALSH   BRADLEY,   J.     (concurring).     Although    I

agree with the imposition of a public reprimand and full costs,

I do not join the lead opinion.        Instead, I join Part I of the

above concurrence.




                                  1
                                                             No.    2010AP2942-D.dtp




     ¶112 DAVID      T.    PROSSER,      J.    (dissenting).            This       is     a

landmark case in attorney discipline.               It addresses the issue of

an   attorney's     ethical      responsibilities         when   the     attorney's

client——or    a   witness     called     by   the   attorney——provides             false

testimony that the attorney knows is false at the time of the

testimony or learns is false sometime after the testimony.

     ¶113 It is hard for a judge not to sound the trumpet and

wave the flag for "the truth, the whole truth, and nothing but

the truth" in judicial proceedings.              No one in the judiciary is

"for" false testimony.            Yet the court's lead opinion, which

emphatically      embraces    the    necessity      for   "truth"      in    judicial

proceedings,      leaves    me   quite    uncomfortable      for    a    number         of

reasons.

     ¶114 First, this notable case will be associated with an

attorney who was caught in the middle of a mess he did not

create, whereas the two attorneys who are responsible for the

mess have been able to walk away with inadequate discipline or
no discipline.

     ¶115 Second, I do not perceive that the respondent attorney

set out to misrepresent critical facts to a referee.                        This is a

case in which the attorney was "directed" by his senior partner

to represent another attorney, without pay.                  When the attorney

asked the "client" attorney questions on direct examination, the

"client"     attorney      omitted     important      information           from        his

answers, and when the "client" attorney answered questions on
cross examination, he lied.              This court determines that the

                                         1
                                                                     No.    2010AP2942-D.dtp

respondent attorney assigned to represent the "client" attorney

had   an   obligation      "to    take    reasonable          remedial       measures"      to

correct his client's false testimony——even if the attorney did

not learn of the falsity until sometime after the testimony was

given——and that all attorneys have such a duty.                              However, the

opinion    does     not    say    much    about     how       this    duty        should    be

discharged.

      ¶116 Third,         the    lead    opinion         is    a     little       light    in

discussion     about       the     serious       tension           between        privileged

information, confidentiality, and loyalty to a client, on the

one hand, and an attorney's obligation to the court, on the

other.

      ¶117 Finally, the lead opinion is almost 50 pages in length

because the court finds it necessary to resolve several close

questions    against       the   respondent        attorney,         but     it    reads    as

though the respondent attorney should have resolved all these

subtle questions the same way the lead opinion has resolved

them . . . without much difficulty.                  We ought to ask: Has the

court    provided    sufficient         guidance    for       the    Wisconsin       bar    to
avoid in the future the same pitfalls that the attorney faced in

this case?

                                           I

      ¶118 The background facts in this case are complicated and

murky.      Several       important      facts     are    omitted          from    the    lead

opinion in an effort to eliminate uncertainty by simply ignoring

it.

      ¶119 At one point, about 2000, Attorneys Alvin Eisenberg,
Brian K. Polk, and the respondent, John Kenyatta Riley, all

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                                                           No.    2010AP2942-D.dtp

worked at the firm of Eisenberg, Weigel, Carlson, Blau, Reitz &

Clemens, S.C. in Milwaukee.

       ¶120 Attorney Polk left the firm in June 2000 and permitted

his license to be suspended in 2001 because of noncompliance

with CLE.

       ¶121 Attorney Riley left the firm sometime in 2000-2001 to

join another firm.      He started his own law firm in Milwaukee in

2003.

       ¶122 In 1990 six attorneys acquired shares in the firm that

Attorney Eisenberg had founded in 1958.               In 1999 Joseph Weigel

became president of that firm and engineered the redemption of

all stock owned by Eisenberg.       Thereafter:

       In January 2005 the Firm, without giving prior notice
       to Attorney Eisenberg, moved its law office to a new
       location.   A letter was left for Attorney Eisenberg
       saying there was no office space for him at the new
       location, that he should go home, and that his
       paychecks would be sent to him.
In re Disciplinary Proceedings Against Weigel, 2012 WI 71, ¶¶8,

9, 12, 342 Wis. 2d 129, 817 N.W.2d 835.

       ¶123 Ugly    litigation      followed          Attorney        Eisenberg's

departure from his old law firm, and soon, he started a new

firm.    He brought Brian Polk into the new firm no later than

October 10, 2005, even though Polk's law license was suspended.

       ¶124 Eisenberg   also    brought      Attorney   Riley     into   the   new

firm    sometime   in   2005.     The       referee   found      as   fact   that,

"[b]etween October 2005 and September of 2006, Attorney Riley

was an associate at the Eisenberg law firm.                      Attorney Riley

maintained his solo practice offices on Water Street for a short



                                        3
                                                                   No.    2010AP2942-D.dtp

while after re-joining Attorney Eisenberg in practice.                           His work

time was spent between both offices."

    ¶125 The referee also found that, "[Riley] practiced solo

until early 2006          when he joined Eisenberg Law Office, which

later    came   to   be    Eisenberg      &       Riley   then   Eisenberg,      Riley   &

Muwonge,     and     in    2011    was    Eisenberg,         Riley       &   Zimmerman."

(Emphasis added.)

    ¶126 Attorney          Riley    was       not    part   of    the    new    Eisenberg

firm's personal injury group in which Polk worked.                             Rather, he

had a general practice, which included bankruptcy, criminal, and

real estate law.          He often was in court when the personal injury

group met.

    ¶127 These        facts    suggest        that    it    is   not     entirely   clear

whether Attorney Riley knew the full story about Polk's role at

the new Eisenberg firm.            What is undisputed is that Polk filed a

pro se petition for readmission to the bar on February 22, 2006;

and because of opposition to reinstatement by the Office of

Lawyer Regulation (OLR), this court appointed a referee, who

conducted a hearing on September 6, 2006.
    ¶128 Attorney           Eisenberg         "directed"         Attorney      Riley     to

represent Polk at that hearing.                   The referee in this case found

that "[t]he reinstatement hearing [in 2006] was pending at the

same time law firm disputes and other practice concerns were in

play."    The referee in this case also found:

         The attorney-client relationship between Attorney
    Riley and Brian Polk was limited to Attorney Riley
    appearing at the reinstatement trial in a "second-
    chair" capacity.   The representation did not include
    Attorney   Riley's  preparation   of  the   witnesses,
    drafting of the petition, prior review of the record,

                                              4
                                                                      No.    2010AP2942-D.dtp
     strategy sessions or consultation, solicitation of
     testimony based on this reinstatement trial's court-
     ordered standards, attention to or analysis of answers
     to questions.     [Attorney Riley] had not previously
     represented   any   clients   in  Reinstatement  [and]
     disciplinary proceedings were not within Attorney
     Riley's usual area of practice.
(Citations omitted.)

     ¶129 The critical question is when Attorney Riley actually

knew that Polk was improperly employed by the Eisenberg law

firm.     Did he know it on September 6, 2006, or did he learn it

later?

     ¶130 The referee found that "Attorney Riley and Brian Polk

spoke about his law firm employment during 2006 when he was

serving as counsel for Brian Polk."

     ¶131 Attorney         Riley        disputes      this     finding.           The     lead

opinion asserts that it was "not necessary that Attorney Riley

knew that Attorney Polk was practicing law (as opposed to simply

working) at the new Eisenberg firm, in order for Attorney Riley

to   have      violated    former        SCR       20:3.3(a)(4),"       lead      op.,     ¶47

(emphasis omitted), because "a lawyer has a duty to remediate

false testimony given by a client, regardless of the manner in

which    the    false     testimony      was       given,"     id.,    ¶57.        The    lead

opinion     states    that     a    lawyer     had    a   duty   to     take     reasonable

remedial measures under former SCR 20:3.3(a)(4) when his client

omitted an "important fact" from his answers on a subject that

was "material."         Id., ¶58.

     ¶132 What        should       be   evident      to   everyone          is   that    Alvin

Eisenberg is the person responsible for employing Brian Polk, an

attorney       with   a   deeply        troubled       past,     including        a     felony
conviction and a citation for loitering-illegal drug activity,

                                               5
                                                       No.   2010AP2942-D.dtp

while Polk was suspended from the practice of law.                Eisenberg

tried hard to hide Polk's role in the firm.                  Eisenberg was

purportedly paranoid that his rivals at the Weigel law firm

would   discover   and    disclose    Polk's   employment,      discrediting

Eisenberg    and   discrediting      the   firm.   Eisenberg     "directed"

Attorney Riley to assist Polk at the reinstatement hearing.                  He

knew he could not do it himself.

    ¶133 Eisenberg       eventually    was   disciplined   by   OLR   with    a

public reprimand.         Public Reprimand of Alvin H. Eisenberg,

2012-8.     However, his "public reprimand" is not published in the

Wisconsin Reports, and it takes a little detective work even to

find it online.     Moreover, the reprimand reads in part:

         In a May 10, 2008 response to this matter,
    Eisenberg stated that, in March of 2006, he discovered
    Mr. X's license to practice law was suspended, causing
    Eisenberg to terminate Mr. X and tell him he could not
    return until his license was reinstated.     Eisenberg
    further stated that, "[Mr. X] has not returned to this
    date."

         This matter was referred to a district committee
    for investigation.     Eisenberg denied to committee
    investigators that Mr. X had returned to work at the
    firm after being terminated in March of 2006 and
    denied that Mr. X used an assumed name.     Eisenberg
    could give no explanation for letters that were
    produced that had been signed using the assumed name,
    and he denied authorizing or having knowledge of
    anyone in the firm using that name.

         In response to the committee report Eisenberg
    stated that, after reviewing records, he found that
    Mr. X worked for the firm for six days in July and
    August 2006.     Eisenberg admitted that the firm's
    receptionist "keeps a detailed daily record of the
    employees' attendance as employees come and go from
    the office."    Eisenberg should have consulted these
    records before responding negatively to previous
    questions about whether Mr. X returned to work at the
    firm after he was terminated in March 2006.
                               6
                                                             No.    2010AP2942-D.dtp

See https://compendium.wicourts.gov/app/raw/002479.html.

    ¶134 These three bland paragraphs should be compared to the

extensive    negative    discussion      of     Attorney   Riley    in    the   lead

opinion.

    ¶135 As      for    Brian    Polk    (a/k/a     "Mr.     X"),    he   was    not

readmitted to the bar.           He did not appeal the referee's ruling

not to reinstate him and——to the best of my knowledge——he has

not reapplied.      But OLR never went after Polk for practicing law

without a license or lying to a referee.              Consequently, there is

no OLR "discipline" on his record.

                                         II

    ¶136 Attorney        Riley     was    charged     with     violating        three

Supreme     Court   rules:      former    SCR    20:3.3(a)(4);       current      SCR

20:3.4(b); and current SCR 20:8.4(c).               The text of the rules is

significant.

    ¶137 In 2006 SCR 20:3.3(a)(4) read:

            A lawyer shall not knowingly:

            . . . .

         (4) offer evidence that the lawyer knows to be
    false. If a lawyer has offered material evidence and
    comes to know of its falsity, the lawyer shall take
    reasonable remedial measures.

(Emphasis added.)

    ¶138 SCR 20:3.4(b) reads:

            A lawyer shall not:

            . . . .

         (b) falsify    evidence,  counsel  or   assist  a
    witness to testify falsely or offer an inducement to a
    witness that is prohibited by law.


                                         7
                                                     No.   2010AP2942-D.dtp
      ¶139 SCR 20:8.4(c) reads:

            It is professional misconduct for a lawyer to:

             . . . .

           (c) engage in conduct involving               dishonesty,
      fraud, deceit or misrepresentation.
      ¶140 OLR's complaint asserted:

           By eliciting and allowing Polk's testimony at
      Polk's reinstatement hearing regarding Polk's work
      history during the suspension of Polk's license that
      omitted Polk's employment at Riley's law firm,
      Eisenberg & Riley, S.C., when Riley knew of that
      employment at the time he elicited and allowed that
      testimony, and his failure to remedy that omission at
      any time thereafter,      Riley violated former SCR
      20:3.3(a)(4), SCR 20:3.4(b), and SCR 20:8.4(c).
      ¶141 Attorney Riley was put in a very difficult situation.

He either knew the full story about Polk's employment at the

time Polk testified, or he didn't.            In either    event, if he

"offered" the information and if the information was "material"

at the reinstatement hearing, the lead opinion asserts that he

had a duty to take "reasonable remedial measures."          Arguably, if

he did not "offer" the information or if the information was not

"material," he did not have a duty to take "reasonable remedial

measures."

      ¶142 Assuming the existence of a duty, reasonable remedial

measures could be interpreted to mean informing the referee that

Polk's testimony was false, which would have had consequences.

First, it would have destroyed any chance that Polk would win

readmission to the bar.        Second, it would almost certainly lead

to OLR prosecution of Riley's boss, Alvin Eisenberg.           Third, it

could seriously affect Riley's relationship with Eisenberg and
the   law    firm,   leading   to   Riley's   possible   resignation    or

                                     8
                                                                      No.    2010AP2942-D.dtp

termination.1        Fourth, it could damage the law firm.                         Fifth, it

could    lead   to     a    suit    that      Attorney     Riley      had    breached      the

attorney-client        privilege         to    Polk's    detriment.           If    Attorney

Riley knew all the facts about Polk's employment, he may have

calculated      that       he    would   inform    the     referee      if    the       referee

decided    in   favor       of    reinstatement.           Of    course,      the       referee

decided against reinstatement.                  The lead opinion has no room for

"no harm, no foul."

     ¶143 It may well be that the legal profession must set high

standards of candor and integrity, regardless of the cost to an

individual      attorney.            But       shouldn't        the   court        at    least

acknowledge the heavy stakes in this case and the potential

heavy    stakes   in       future    cases      that    will     be   affected      by    this

decision?

     ¶144 To illustrate, the rules cited do not exempt attorneys

who practice criminal law.                    What are the practical effects of

this case on criminal defense attorneys?                         What are "reasonable

remedial" steps for a criminal defense attorney who knows or

learns after his client has testified that his client has lied?
I do not sense that the court's decision permits attorneys to

look the other way when they know their client has testified

falsely or omitted "important facts," even in a criminal case.

Clearly, the court does not believe it was enough for Attorney

Riley to withdraw as counsel after the hearing, as he did.




     1
       OLR's reference to "Riley's law firm" is a bit of an
exaggeration.


                                               9
                                                          No.   2010AP2942-D.dtp

    ¶145 Inasmuch as the referee found that Attorney Riley knew

about   Polk's   employment   with    Eisenberg      at   the    time    of   the

reinstatement hearing, it may seem unnecessary to discuss what

should have happened if he didn't know until later.                     Notably,

however,   the   court   dismisses        the   alleged   violation      of   SCR

20:3.4(b) of having assisted a witness to testify falsely: A

lawyer "shall not . . . counsel or assist a witness to testify

falsely . . . ."

    ¶146 The court says:

         We agree with Attorney Riley that the language of
    the rule ("counsel or assist a witness") indicates
    that some action by the lawyer prior to or at the time
    of the witness's false testimony is required. . . . We
    believe that SCR 20:3.4(b) should not be interpreted
    to reach the conduct that is shown on this record.
    There was no evidence in the summary judgment
    [record] . . . that Attorney Riley advised Attorney
    Polk not to mention his work at the new Eisenberg
    firm, planned a way in which Attorney Polk could omit
    that information in his testimony . . . , or even knew
    that Attorney Polk intended to provide a list of his
    employers during his suspension that would omit the
    new    Eisenberg   firm. . . .       [T]here    is   no
    indication . . . that the two of them took the step of
    discussing how Attorney Polk should address that
    concern   in   his  reinstatement  hearing   testimony.
    Indeed, Attorney Polk testified that he and Attorney
    Riley never had a preparation session to discuss his
    upcoming testimony at the reinstatement hearing.
Lead op., ¶¶69-70.

    ¶147 Nonetheless, the referee found that "Attorney Riley

and Brian Polk spoke about [Polk's] law firm employment during

2006 when [Riley] was serving as counsel for Brian Polk."

    ¶148 Asking      questions       at     the    hearing      about     Polk's

employment history could be viewed as "assisting" a witness to
testify falsely.     The court declines to take that position.                 On

                                     10
                                                                           No.    2010AP2942-D.dtp

the     other    hand,       the    referee           insisted       that       Attorney          Riley

knowingly "offered" evidence that he knew to be false.                                              The

distinction          between       knowingly          "offering"          evidence       but        not

"assisting" is not clear to me in this case.

      ¶149 If        Attorney       Riley        reasonably         believed       he    did        not

assist    Polk       in    giving     false       testimony,         it     is    difficult            to

understand why he could not reasonably believe that he did not

knowingly offer false evidence at the hearing.

      ¶150 Ethics scholars might wish to compare the word "offer"

in    former     SCR       20:3.3(a)(4)          with       the     word       "offer"       in     SCR

20:3.4(b).           How    does    an    attorney        "offer      an       inducement         to    a

witness" if he never mentions an inducement?

      ¶151 There is another problem inherent in the former rule.

It reads in essence that a lawyer shall not knowingly "offer

evidence" that the lawyer knows to be false.                                But then, in the

second sentence, the rule provides, "If a lawyer has offered

material evidence and comes to know of its falsity, the lawyer

shall    take     reasonable        remedial          measures."           (Emphasis         added.)

The     second       sentence       establishes          a    duty        to     remediate          any
"material        evidence"         that     is       false,        irrespective         of        prior

knowledge, but it does not appear to require remediation of

false evidence if the false evidence is not "material."

      ¶152 "Knowingly           offer"         and    "material       evidence"          thus       are

terms that raise serious issues for an attorney in ambiguous

situations.

      ¶153 These           concerns       go     beyond      the     question       of       how       to

discharge       an    attorney's          clear      duty     to    the     more    fundamental
question of whether this attorney had a duty.

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                                                            No.   2010AP2942-D.dtp

                                    III

       ¶154 My other concern relates to the tension between an

attorney's duties to his client and his duties to the court.

       ¶155 Wisconsin Stat. § 905.03(2), entitled "GENERAL RULE OF

PRIVILEGE," reads:

            A client has a privilege to refuse to disclose
       and to prevent any other person from disclosing
       confidential communications made for the purpose of
       facilitating the rendition of professional legal
       services to the client: between the client or the
       client's representative and the client's lawyer or the
       lawyer's representative; or between the client's
       lawyer and the lawyer's representative; or by the
       client or the client's lawyer to a lawyer representing
       another in a matter of common interest; or between
       representatives of the client or between the client
       and a representative of the client; or between lawyers
       representing the client.
       ¶156 There   are   exceptions     to   this    statute     in    subsection

(4).     It would have been useful for the court to discuss the

applicable exceptions, if any, in this case.

       ¶157 The same is true with respect to SCR 20:1.6 related to

confidentiality:     "(a)   A   lawyer      shall    not   reveal      information

relating to the representation of a client unless the client
gives    informed    consent,    except       for    disclosures        that   are

impliedly authorized in order to carry out the representation,

and except as stated in paras. (b) and (c)."                (Emphasis added.)

What are the applicable exceptions to this rule for Attorney

Riley?

       ¶158 SCR 20:3.3, Candor toward the tribunal, reads in part:

"A lawyer shall not knowingly: (1) 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

                                       12
                                                              No.       2010AP2942-D.dtp

lawyer."     This     rule   about       false   statements       "by    the   lawyer"

strikes me as much clearer and much easier to apply than former

SCR 20:3.3(a)(4).

                                           IV

       ¶159 To   me   the    lead    opinion     raises    sufficient        questions

about its impact on the law and its fairness to the respondent

that I feel bound to respectfully dissent.                   It should be noted

that   the   court    has    not    been      able   to   muster    a    majority    of

justices for the lead opinion.             It should also be noted that the

rule    of   lenity    seems        to   be     missing    from     the     Rules    of

Professional Conduct for Attorneys.




                                           13
    No.   2010AP2942-D.dtp




1
