                                                             2016 WI 12

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2014AP2801-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Stuart F. Roitburd, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Stuart R. Roitburd,
                                 Respondent.

                          DISCIPLINARY PROCEEDINGS AGAINST ROITBURD

OPINION FILED:         February 26, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:          PROSSER, J. concurs (separate writing appended
                       on May 20, 2016 to opinion filed February 26,
                       2016)
  DISSENTED:           ABRAHAMSON, A.W. BRADLEY, J.J., dissent.
                       (Opinion Filed)
  NOT PARTICIPATING:


ATTORNEYS:
                                                                       2016 WI 12
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.     2014AP2801-D


STATE OF WISCONSIN                           :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Stuart F. Roitburd, Attorney at Law:


Office of Lawyer Regulation,                                        FILED
            Complainant,
                                                               FEB 26, 2016
      v.
                                                                  Diane M. Fremgen
                                                               Clerk of Supreme Court
Stuart R. Roitburd,

            Respondent.




      ATTORNEY    disciplinary    proceeding.            Attorney's        license

suspended.



      ¶1    PER   CURIAM.    We    review    Referee        Christine        Harris

Taylor's recommendation that the court declare Attorney Stuart

F. Roitburd in default and suspend his Wisconsin law license for

a period of two years for professional misconduct in connection

with his work as personal representative of his mother's estate

and his non-cooperation with the Office of Lawyer Regulation's
(OLR)   investigation     into   that   misconduct.         The    referee      also
                                                                         No.    2014AP2801-D



recommended          that     Attorney        Roitburd      be     required       to    make

restitution to his mother's estate in the amount of $43,369.74,

and    to      pay   the    full    costs     of    this    proceeding,      which     total

$1,120.29 as of August 11, 2015.

       ¶2       Because      no    appeal     has    been    filed,     we     review    the

referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).1

After conducting our independent review of the matter, we agree

with the referee that, based on Attorney Roitburd's failure to

answer the complaint filed by the OLR, the OLR is entitled to a

default judgment.             However, we disagree with the referee that

Attorney Roitburd's professional misconduct warrants a two-year

suspension of his Wisconsin law license.                         We conclude, instead,

that       a   60-day      suspension    is    warranted.         We    agree    with    the

referee that Attorney Roitburd should be ordered to pay the full

costs of the proceeding.                 We decline to order restitution for

the reasons explained below.

       ¶3       Attorney      Roitburd      was     admitted     to    practice    law    in

Wisconsin in 1984.                He had no disciplinary history prior to the
filing of this complaint.               According to the OLR's complaint, his



       1
           SCR 22.17(2) provides:

            If no appeal is filed timely, the supreme court
       shall review the referee's report; adopt, reject or
       modify the referee's findings and conclusions or
       remand the matter to the referee for additional
       findings;   and   determine  and   impose  appropriate
       discipline.   The court, on its own motion, may order
       the parties to file briefs in the matter.


                                               2
                                                                         No.   2014AP2801-D



law license is currently suspended for failure to cooperate with

the OLR in the investigation that gave rise to this proceeding.

      ¶4     On    December    5,     2014,    the     OLR       filed     the       current

complaint     against      Attorney      Roitburd.         The    complaint          alleges

three counts of professional misconduct in connection with his

work as the personal representative of his mother's estate.

      ¶5     The    following       facts      are    taken        from        the     OLR's

complaint.          Attorney        Roitburd       served         as     the     personal

representative of his father's estate and, beginning in 2006, of

his mother's estate.           This matter primarily concerns Attorney

Roitburd's work as the personal representative of his mother's

estate (hereafter, the "Roitburd Estate").

      ¶6     In April 2011, in connection with the final accounting

of   the    Roitburd    Estate,     the    circuit     court      administering          the

estate ordered Attorney Roitburd to make payments to certain

creditors by early June 2011.

      ¶7     In late June 2011, an attorney appeared on Attorney

Roitburd's behalf and informed the circuit court that there were
errors in the final accounting and that Attorney Roitburd needed

time to correct the errors.

      ¶8     The    circuit    court      granted      a     lengthy       adjournment.

Attorney     Roitburd      failed   to    appear     at    the    adjourned          hearing

date.      The circuit court ordered Attorney Roitburd to appear at

a subsequent hearing, which he failed to do.

      ¶9     In    March    2012,   the     circuit       court    removed       Attorney

Roitburd     as    personal    representative         of    the    Roitburd          Estate,
appointed a different attorney to serve as successor personal
                                           3
                                                                          No.   2014AP2801-D



representative,         and     issued        a    bench     warrant      for     Attorney

Roitburd.       Attorney Roitburd was taken into custody and later

released on a signature bond.

       ¶10     At a subsequent court hearing, the successor personal

representative      testified        that         multiple      assets    had    not     been

transferred      from     Attorney      Roitburd's         father's      estate    to     his

mother.      Attorney Roitburd also canceled five meetings that the

successor personal representative had scheduled for the purpose

of    discussing    the    estates       of       Attorney      Roitburd's      father    and

mother.

       ¶11     Attorney       Roitburd        stated       he     would        return    any

unaccounted for assets to the Roitburd Estate by December 25,

2012, but failed to do so.

       ¶12     On motion from the successor personal representative,

the circuit court entered an order to show cause for the return

of    estate    assets.        After     a    hearing      at    which    both    Attorney

Roitburd and the successor personal representative testified,

the    circuit     court      ordered        Attorney      Roitburd       to    repay    the
Roitburd Estate $43,369.74 and to provide proof of payment of

$13,000 in taxes by mid-March 2013.                     Although Attorney Roitburd

ultimately provided proof that he had paid the $13,000 in taxes,

he never paid the $43,369.74 to the Roitburd Estate.                              In April

2013, the circuit court entered an order and judgment finding

Attorney Roitburd liable to the Roitburd Estate for $43,369.74.

The judgment remains unsatisfied.

       ¶13     During the OLR investigation that gave rise to this
proceeding, Attorney Roitburd failed to provide responses to the
                                              4
                                                                  No.   2014AP2801-D



OLR's repeated requests for information.               On May 22, 2014, this

court temporarily suspended Attorney Roitburd's license due to

his willful failure to cooperate with the OLR's investigation.

Attorney Roitburd's license has remained temporarily suspended

to the date of this opinion.

      ¶14     Based on the course of conduct described above, the

OLR alleged in its complaint that Attorney Roitburd knowingly

disobeyed      obligations    under   the      rules    of    a    tribunal,      in

violation     of   SCR   20:3.4(c)2   (Count    One);    engaged        in   conduct

involving dishonesty, fraud, deceit, or misrepresentation, in

violation of SCR 20:8.4(c)3 (Count Two); and failed to cooperate

with the OLR investigation and to provide relevant information,

answer questions fully, or furnish documents in the course of an

OLR       investigation,     in   violation      of     SCR       22.03(2)4      and

SCR 22.03(6),5 enforced by SCR 20:8.4(h)6 (Count Three).

      2
       SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
      3
       SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
      4
          SCR 22.03(2) provides:

           Upon commencing an investigation, the director
      shall notify the respondent of the matter being
      investigated unless in the opinion of the director the
      investigation of the matter requires otherwise.    The
      respondent shall fully and fairly disclose all facts
      and circumstances pertaining to the alleged misconduct
      within 20 days after being served by ordinary mail a
      request for a written response.      The director may
                                                      (continued)
                                       5
                                                     No.   2014AP2801-D



    ¶15   The OLR personally served the complaint and an order

to answer on Attorney Roitburd.     Attorney Roitburd failed to

file an answer, and the OLR moved for default judgment.

    ¶16   The referee mailed a notice of a hearing on the OLR's

motion for default judgment to Attorney Roitburd at his address

on file with the State Bar of Wisconsin.       Attorney Roitburd

failed to appear for the hearing.

    ¶17   The referee issued a decision recommending that this

court grant the OLR's motion for default judgment.     In so doing,

the referee deemed the allegations in the OLR's complaint to be

established.   The referee recommended a two-year suspension of

Attorney Roitburd's Wisconsin law license, the imposition of the

full costs of this proceeding against him, and the imposition of

restitution to the Roitburd Estate in the amount of $43,369.74.




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


                                6
                                                                                No.    2014AP2801-D



      ¶18     Attorney Roitburd did not appeal from the referee's

report and recommendation.                   Thus, we proceed with our review of

the matter pursuant to SCR 22.17(2).                                 We review a referee's

findings of fact subject to the clearly erroneous standard.                                       See

In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14,

¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                              We review the referee's

conclusions of law de novo.                       Id.     We determine the appropriate

level of discipline independent of the referee's recommendation.

See In re Disciplinary Proceedings Against Widule, 2003 WI 34,

¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

      ¶19     We    agree    with           the    referee        that    Attorney          Roitburd

should   be    declared          in    default.            Although       the    OLR        effected

personal      service       of        its        complaint,       and     although          Attorney

Roitburd     was    given    notice          of     the    hearing       on   the     motion      for

default judgment, he failed to appear or present a defense.

Accordingly, we deem it appropriate to declare him in default.

In addition, the referee properly relied on the allegations of

the   complaint,        which          were        deemed       admitted.             See    In    re
Disciplinary Proceedings Against Coplien, 2010 WI 109, ¶¶10-11,

329   Wis.    2d    311,    788       N.W.2d        376.        We    therefore       accept      the

referee's     findings      of        fact        based    on    the     allegations         of   the

complaint.         We also agree with the referee that those findings

of fact adequately support the legal conclusions of professional

misconduct     with     respect             to    the     three      counts     of     misconduct

alleged in the complaint.

      ¶20     However, we disagree with the referee's recommendation
that this court impose a two-year license suspension.                                       As noted
                                                   7
                                                                         No.   2014AP2801-D



above, it is ultimately this court's responsibility, rather than

the referee's, to determine the appropriate level of discipline.

See In re Disciplinary Proceedings Against Reitz, 2005 WI 39,

¶74, 279 Wis. 2d 550, 694 N.W.2d 894.                         We owe no deference to

the referee's recommended sanctions.                      See In re Disciplinary

Proceedings Against Carroll, 2001 WI 130, ¶37, 248 Wis. 2d 662,

636 N.W.2d 718.           In considering the appropriate sanction, this

court seeks to impress upon the attorney the seriousness of the

misconduct, to deter other attorneys from engaging in similar

misconduct, and to protect the public, the courts, and the legal

system from a repetition of the misconduct.                           See, e.g., In re

Disciplinary          Proceedings        Against   Grogan,        2011    WI     7,     ¶17,

331 Wis. 2d 341, 795 N.W.2d 745.

    ¶21     Under       the    unique      circumstances         of    this     case,     we

conclude that a 60-day suspension is sufficient to accomplish

these goals.           This is the first time in the more than three

decades since Attorney Roitburd's admission to the Wisconsin bar

that he has been the subject of professional discipline in this
state.     Until now, Attorney Roitburd has not created a reason to

believe that the public, the courts, or the legal system must be

protected from the risk of his misconduct.                        We note, too, that

the three counts of misconduct at issue here do not evince an

extensive     pattern         of    indifference         to     our    ethical        rules.

Finally,    we    note     that     our    knowledge      of     Attorney      Roitburd's

misconduct       is    limited      to    the    facts    alleged        in    the    OLR's

complaint and established by Attorney Roitburd's default.                              As a
result, there is much we do not know about his work as personal
                                             8
                                                                             No.    2014AP2801-D



representative         of   his     mother's     estate,        and    about       the    estate

itself.       For example, while we know that certain assets went

unaccounted for, we do not know whether any mistakes Attorney

Roitburd made in the administration of the estate rose to the

level    of   dishonesty       or    bad   faith.         We     do    not    know       whether

Attorney Roitburd was an heir to the estate, such that he might

otherwise       have   been    entitled         to   receive      some    amount         of   the

assets at issue.            We do not know whether his actions affected

the    rights    and    realization        of    payments        to    creditors         of   the

estate.

       ¶22    We have, in the past, imposed far less than a two-year

suspension      for    either      comparable        or   more       serious       misconduct.

For     example,       in     In     re    Disciplinary          Proceedings             Against

Fitzgerald, 2008 WI 101, 314 Wis. 2d 7, 752 N.W.2d 879, we

suspended Attorney Fitzgerald's license for 60 days based on a

six-count       disciplinary         complaint.           The        misconduct         included

Attorney Fitzgerald's appearing on behalf of clients during her

law license suspension; billing the State Public Defender and
accepting     payment       for     appearances       made      on    behalf       of    clients

during her law license suspension; misleading a county clerk

about her law license status; and failing to cooperate with the

OLR.      Our 60-day suspension of Attorney Fitzgerald's license

followed a previous 90-day suspension for numerous instances of

misconduct.        In In re Disciplinary Proceedings Against Osicka,

2014 WI 33, 353 Wis. 2d 656, 847 N.W.2d 343, this court imposed

a 60-day suspension based on Attorney Osicka's default to                                       a
four-count       disciplinary        complaint.           The        misconduct         included
                                             9
                                                                              No.   2014AP2801-D



failing to place a client's advanced fee into a client trust

account or to provide the notices required by the alternative

advanced fee procedure; charging an unreasonable fee; failing to

refund unearned fees; and failing to cooperate with the OLR.

Our 60-day suspension of Attorney Osicka's license followed two

previous public reprimands.                       Finally, in In re Disciplinary

Proceedings Against Lamb, 2011 WI 101, 338 Wis. 2d 1, 806 N.W.2d

439, this court imposed a 60-day suspension for 21 counts of

misconduct related to Attorney Lamb's handling of four client

matters.       Our    60-day      suspension         of    Attorney          Lamb's     license

followed a previous private reprimand.

      ¶23    In    light     of   our    resolutions          of    prior       disciplinary

actions, and in light of the unique circumstances of this case,

we   deem    the     OLR's    and       the       referee's      recommended          two-year

suspension to be excessive.                       To be clear, Attorney Roitburd

should not construe this opinion as a vindication of any aspect

of his misconduct or his failure to appear at any stage of these

disciplinary       proceedings.              We    simply     conclude          that,     while
Attorney Roitburd violated his ethical duties as an attorney, a

60-day      suspension       will       be    sufficient           to        accomplish      the

objectives of the lawyer disciplinary system.

      ¶24    As to the issue of restitution, the OLR requested and

the referee recommended that this court order Attorney Roitburd

to   pay    restitution      to   the    Roitburd         Estate        in    the   amount    of

$43,369.74.          However,     we    note       that    the     OLR       states     in   its

complaint that the circuit court administering the estate has
entered an order and judgment directing Attorney Roitburd to pay
                                              10
                                                                           No.    2014AP2801-D



the estate the amount of $43,369.74.                         Neither the OLR nor the

referee explains why this court should order restitution that

would duplicate that already ordered by the circuit court.                                   We

therefore deny the referee's recommendation for restitution.                                 We

deem it appropriate, however, to require, as a condition of the

reinstatement         of    his        Wisconsin      law    license,      that     Attorney

Roitburd demonstrate to the court that he has satisfied the

judgment    entered         by     the    circuit      court    against      him       in   the

Roitburd Estate.

      ¶25   Finally, we agree that Attorney Roitburd should pay

the full costs of the proceeding.

      ¶26   IT IS ORDERED that the license of Stuart F. Roitburd

to   practice     law       in    Wisconsin      is    suspended     for    a     period     of

60 days, effective April 26, 2016.

      ¶27   IT       IS    FURTHER       ORDERED      that    the   temporary          license

suspension      of    May        22,    2014,   which       arose   out    of     Stuart     F.

Roitburd's       willful          failure       to    cooperate      with        the     OLR's

investigation in this matter, is lifted.
      ¶28   IT IS FURTHER ORDERED that within 60 days of the date

of this order, Stuart F. Roitburd shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

      ¶29   IT       IS     FURTHER       ORDERED      that     compliance        with      all

conditions of this order is required for reinstatement.                                     See

SCR 22.28(2).             This requirement includes Stuart F. Roitburd's

obligation to demonstrate to the court that he has satisfied the

judgment entered by the circuit court against him in Estate of


                                                11
                                                        No.   2014AP2801-D



Shirley   Roitburd,   Milwaukee   County   Case   No.   06-PR-1840,    as

described above.




                                  12
                                                                       No.    2014AP2801-D.dtp


      ¶30   DAVID T. PROSSER, J.                    (concurring).            This attorney

discipline case is more than "problematic" because the facts are

not clear.

      ¶31   Attorney Roitburd was named personal representative of

his   mother's   estate.           He    had       previously        served      as   personal

representative        of    his    father's         estate.           Attorney         Roitburd

transferred many thousands of dollars from his mother's estate

to his own accounts.               Allegedly, he had earlier transferred

money from his father's estate to himself so that it could not

later be transferred to his mother.                   When these matters led to a

discipline   charge        by    the    Office       of    Lawyer     Regulation         (OLR),

Attorney Roitburd was not cooperative.

      ¶32   The majority opinion imposes a suspension of 60 days

for his conduct; the concurring opinion of Justice Abrahamson

would impose a suspension of two years.                         The latter suspension

is the period of suspension that was sought by OLR and approved

by the referee after a default judgment.

      ¶33   It   is    not      uncommon       for        members     of     the      court   to
disagree    about     the       length    of       suspension        for     a     disciplined

attorney, but the difference between two months and two years is

quite extraordinary.              That difference must be grounded in two

substantially    different          perceptions           of   the    facts.          When    the

facts are not clear, the court is forced to speculate about what

the facts are or make assumptions about what the facts are, and

those guesses or assumptions can be wrong.

      ¶34   Ironically, the court recently reviewed a separate but
similar case that has been dismissed with no discipline.                                      The

                                               1
                                                          No.   2014AP2801-D.dtp


case involved an attorney who served as trustee for his father's

estate,    which   was   created   to    protect   the   attorney's    mother.

Without authorization, the attorney took approximately $360,000

from the trust to pay for his gambling.                  When third parties

informed the attorney's mother and other members of the family,

the family rallied around the attorney who promised to pay all

the money back with interest.           The attorney also cooperated with

the OLR.     See OLR v. Karabon, No. 2015AP183-D, which we also

decide today.

    ¶35     The facts in the present case do not disclose what

Attorney Roitburd's family thinks about his conduct.               What we do

know is that Attorney Roitburd did not cooperate with the OLR.

    ¶36     I believe that some discipline should be imposed in

this case and that some discipline could have been imposed in

the other case as well.        How much discipline should be imposed

in this case depends on facts we don't have.             For that reason, I

concur without a decision as to the amount of discipline.




                                        2
                                                                              No.       2014AP2801-D.ssa


       ¶37     SHIRLEY S. ABRAHAMSON, J.                         (concurring in part and

dissenting in part).                   The OLR charged Attorney Roitburd with

three       violations          of    the    Rules        of    Professional             Conduct      for

Attorneys.           I        agree    with      the      per     curiam          that       the     three

violations         were       established       by     virtue      of       Attorney         Roitburd's

default      in     these       proceedings.              I    also     agree           that    Attorney

Roitburd       should          pay     the    full        costs        of     this       disciplinary

proceeding.               I     agree,       finally,          that         Attorney         Roitburd's

compliance         with       all     conditions          imposed       in        the    per       curiam,

including satisfaction of the judgment entered by the circuit

court      against        him    in     Estate       of    Shirley          Roitburd,          Milwaukee

County        Case        No.         06-PR-1840,             should         be      required          for

reinstatement.

       ¶38     I    disagree,          however,        with      two    aspects           of    the   per

curiam:

       ¶39     (I) I disagree with the four justices joining the OLR

per    curiam1       blocking         release        of    Justice          David       T.     Prosser's

separate writing and insisting that his writing be released at a
later time.          No basis exists for this action.                             Indeed, the four

justices have violated the Supreme Court's Internal Operating

Procedures (IOP).

       ¶40     (II) I disagree with the length of suspension imposed

by    the    per     curiam          opinion.    The       per    curiam           grants       Attorney

Roitburd a 22-month reduction in the sanction requested in the

       1
       I use the phrase "OLR per curiam" to refer to a per curiam
in an attorney discipline proceedings prepared by a court
commissioner. See Internal Operating Procedure (IOP) II H.


                                                  1
                                                                    No.   2014AP2801-D.ssa


OLR complaint to which he defaulted.                    There is no justification

for this significant downward departure.

                                              I

       ¶41     The per curiam insists that Justice Prosser's separate

writing be held and not be released at the same time as the OLR

per curiam.           They want the per curiam to bear the notation

"separate writing to follow."2

       ¶42     The    instant     OLR   per       curiam     does   not    explain    why

Justice Prosser's separate writing will follow later rather than

be released with the per curiam.

       ¶43     There is, however, only one possible explanation.                      The

four       justices   must   be    relying        on   the   procedure     for   opinion

preparation and mandate adopted by a majority of the court in

September 2014.3

       ¶44     The     September        9,    2014       procedure        for    opinion

preparation and         mandate is set forth in the Supreme Court's

Internal Operating Procedures (IOP) at II G.                        A reading of the

plain language of IOP II G. demonstrates, however, that IOP II
G. does not govern the instant OLR per curiam.

       ¶45     I have attached a copy of Internal Operating Procedure

II G. as Attachment A.4             Attachment A also includes paragraphs

       2
           Per curiam, ¶30.
       3
       See State v. Gonzalez, 2014 WI 124, ¶¶30-31, 359
Wis. 2d 1,   856   N.W.2d 580   (Abrahamson, C.J., concurring)
(setting forth in full the procedure adopted by the court and
disagreeing with its adoption).
       4
       The Supreme Court Internal Operating                           Procedures      are
printed in volume 6 of the Wisconsin Statutes.


                                              2
                                                                No.   2014AP2801-D.ssa


adjacent to IOP II G. to put II G. in context.                         Attachment A

sets       forth   paragraphs   E,   F,    G,   and   H    of    "II.    Decisional

Procedure—Appellate and Original Jurisdiction."

       ¶46     Apparently   Justice       Prosser's       separate      writing    is

viewed by the four justices as falling within IOP II G. 55 and

IOP II G. 66 because        Justice Prosser's separate writing compares

in general terms the instant case with a pending OLR case that

raises similar issues.

       5
       Section 5 of IOP II G. provides as follows relating to the
"separate writing to follow" notation:

       5.    Separate Writings to Follow.    If, during the
       course of a separate writing, the author cites to a
       case then pending before the court for which the
       opinion of the court has not been released, the
       majority   opinion   shall  be  released    with  the
       designation "separate opinion(s) to follow," unless
       the citation can be replaced with ellipses in which
       case the separate opinion shall be released with the
       majority opinion and the ellipses shall be replaced
       with the omitted citation when the cited opinion is
       released.   There shall be no further changes to the
       separate writings after mandate.    Separate writings
       for which the citation cannot be replaced with
       ellipses shall be released when the then unreleased
       decision that was cited in the separate opinion is
       released.
       6
       Section 6 of IOP II G. provides as follows relating to the
"separate writing to follow" notation:

       6.    Holds; Tying Together Release of Two Pending
       Cases.   No one justice may block the release of a
       majority opinion by a "Hold."       It shall take the
       affirmative vote of the majority of the participating
       justices to block the release of a majority opinion.
       No one justice may tie together the release of two
       pending cases. It shall take the affirmative vote of
       a majority of the participating justices in each case
       to tie together the release of two pending cases.


                                          3
                                                              No.    2014AP2801-D.ssa


      ¶47   I conclude that IOP II G. does not apply to OLR per

curiam opinions.         OLR per curiam opinions are governed by IOP II

H.   (entitled    Per     Curiam     Opinion)     and   IOP     II   I.    (entitled

Mandate).

      ¶48   I    would    follow     the   Internal     Operating         Procedures.

Therefore the opinion in the instant OLR per curiam should not

be released at this time.              The per curiam in the instant OLR

case and Justice Prosser's separate writing should be released

at the same time as (or after) the other OLR per curiam to which

Justice Prosser's separate writing refers.

      ¶49   Applying      IOP   II    G.   to   the   instant    OLR      per   curiam

violates the text of IOP II G.             IOP II G. is written entirely in

terms of opinions authored by a justice.                See the text of IOP II

G. set forth in Attachment A.              OLR per curiams are not authored

by a justice.

      ¶50   Furthermore, IOP II H. and IOP II I. explicitly govern

the procedure to be followed for per curiam opinions in attorney

disciplinary proceedings.            IOP II H. provides (emphasis added):
            H. Per Curiam Opinion

           Per curiam opinions may be prepared by a justice
      or a court commissioner for consideration by the
      court.   Per curiam opinions in judicial and attorney
      disciplinary proceedings are prepared by a court
      commissioner for the court's consideration.        The
      decisions in all cases are made by the court, and the
      per curiam opinions are reviewed by the entire court
      and are approved as to form and substance by the court
      prior to issuance.
      ¶51   IOP II I. provides (emphasis added):
            I.    Mandate


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         The court's decision in a case is mandated
    promptly upon approval of the opinion by the court, as
    set forth above, and upon notification by the chief
    justice to the clerk, or upon notification by the
    author of the majority opinion if the chief justice is
    unable or unwilling to notify the clerk. The court's
    opinion is issued simultaneously with any concurring
    or   dissenting   opinions,    unless  concurring   or
    dissenting opinion or opinions come within paragraph 5
    above as "Separate Writing to Follow."
    ¶52   In contrast to IOP II G. 5., relating to "separate

writing to follow," IOP II I. sets forth the general rule that a

court's opinion is mandated simultaneously with any concurring

or dissenting opinions (except when a                    concurring or dissenting

opinion or opinions falls within section 5 of IOP II G.).

    ¶53   Here is how justice-authored opinions governed by IOP

II G. differ from OLR per curiam opinions:

       • The     September        2014    procedure       speaks        to    a   majority

          opinion authored by a justice.                   But an OLR per curiam

          is not authored by a justice.

       • A justice-authored opinion is assigned to a justice by

          the court.        In contrast, an OLR attorney discipline

          matter     is     assigned          to     a     supreme           court    staff
          commissioner by the Clerk of the Supreme Court.

       • The justice who authors a majority opinion has been

          instructed with regard to the writing by the court.

          With     regard     to     an       OLR    per     curiam,           the   court

          commissioner       recommends        a     resolution         to    the    court.

          The    court      may     accept      or       change    the        recommended

          resolution of the OLR matter.                   The commissioner drafts
          the per curiam and circulates it to the justices for

          approval or separate writings.
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        • Four   justices      must    agree       to    hold   a     conference   to

          discuss a draft of a justice-authored opinion.                            In

          contrast,     four     votes       are   not    needed      for   a   court

          conference on a circulated OLR per curiam opinion.

        • The Internal Operating Procedures state procedures and

          time periods for circulating and mandating a justice-

          authored opinion.        In contrast, an OLR per curiam and

          separate writings relating to the per curiam are not

          governed by the procedures or time periods set forth

          by IOP II G.

    ¶54   In   sum,   IOP   II    G.     entitled        "Opinions"      relates    to

justice-authored majority and lead opinions. IOP II G. does not

relate to OLR per curiams.        OLR per curiams are governed by IOP

II H. and IOP II I.

    ¶55   Several     justices    have       become      so   enamored      with   the

"separate writing to follow" notation that they have threatened

its use in situations that have no relationship to IOP II G. 5.

In other words, they want to extend the "separate writing to
follow" practice to separate writings that do not have anything

to do with a pending case that has not yet been released.

    ¶56   For example, as I noted in my dissent to an order

issued on December 4, 2015 in what is collectively known as "the

John Doe trilogy,"7 I was directed that any separate writing I


    7
       The John Doe case comprises the following matters: Three
Unnamed Petitioners v. Peterson, Nos. 2013AP2504-2508-W;    Two
Unnamed Petitioners v. Peterson, No. 2014AP296-OA; Schmitz v.
Peterson, Nos. 2014AP427-421-W.


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prepared    would       not    be     issued   along    with     the   order      unless    I

circulated my separate writing within a short time after the

majority writing was circulated.8                   The same thing happened about

a month later, with regard to another order in the John Doe

trilogy that was issued on January 12, 2016.9                      Again I objected.

     ¶57        In both orders, I noted that the court's practice of

using "separate writing to follow" serves to stifle minority

views     and    full      consideration       of     the   case   and     in     fact   may

encourage a later circulation of a separate writing.

     ¶58        In   any     event,     this       "separate     writing     to      follow"

intimidation in the John Doe trilogy violates IOP II H. which

clearly    states       as     follows:        "The    court's     opinion      is    issued

simultaneously          with    any    concurring      or   dissenting       opinion       or

opinions, unless concurring or dissenting opinion or opinions

come within paragraph 5 above as "separate writing to follow."

In the John Doe trilogy my separate writings made no reference

to any pending but unreleased opinion.10
     8
       Three Unnamed Petitioners v. Peterson, Nos. 2013AP2504-
2508-W;   Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA;
Schmitz v. Peterson, Nos. 2014AP427-421-W, unpublished order,
¶¶23-32 (Abrahamson, J., dissenting) (Dec. 4, 2015).
     9
       Three Unnamed Petitioners v. Peterson, Nos. 2013AP2504-
2508-W;   Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA;
Schmitz v. Peterson, Nos. 2014AP427-421-W, unpublished order,
¶¶31-35 (Abrahamson, J., concurring in part and dissenting in
part) (Jan. 12, 2016).
     10
       I have also noted my objections to the court's recent
failure to follow our IOPs in State v. Finley, No. 2014AP2488-
CR, unpublished order (Jan. 11, 2016); Regency West Apts. LLC v.
City of Racine, No. 2014AP2947, unpublished order (Jan. 11,
2016); and Wis. Carry, Inc. v. City of Madison, No. 2015AP146,
unpublished order (Jan. 11, 2016).

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       ¶59   In sum, IOP II G. does not apply to OLR per curiams.

Per curiam opinions relating to attorney discipline are governed

by IOP II H. and IOP II I.

       ¶60   Moreover, the "separate writing to follow" tool in IOP

II G. 5. and IOP II G. 6. is peculiar to Wisconsin appellate

practice.      "Separate writing to follow" will be confusing to the

litigants, readers of opinions, and publishers of opinions.                        It

raises numerous problems.        Under these circumstances, it is best

to cabin "separate writing to follow," not expand it beyond its

present borders.

                                        II

       ¶61   I turn now to the length of suspension imposed by the

per curiam.      Attorney Roitburd has known since he received the

OLR complaint that the OLR sought a two-year suspension.                       He has

also   known    since   he   received    the       referee's    report    that    the

referee recommended a two-year suspension.                     Yet he has never

questioned or challenged that recommended suspension.                        He has

not been heard from whatsoever.
       ¶62   Problematically,     the        per    curiam     appears    to     give

Attorney Roitburd the benefit of              the doubts created by his own

non-participation.       The per curiam notes, for example, that we

do not know all the facts concerning Attorney Roitburd's work as

personal representative of his mother's estate, nor do we know

the details of the estate itself.             The per curiam holds open the

possibility that Attorney Roitburd did not engage in dishonest

or bad faith behavior at all.           According to the per curiam, this
uncertainty justifies an over 90% reduction in the OLR's and the

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referee's recommended suspension, even though Attorney Roitburd

never made an appearance to oppose that suspension.                                    Based on

this result, a lawyer facing misconduct charges could hardly be

blamed for believing that the best defense is no defense—indeed,

no cooperation with the disciplinary process at all.

      ¶63   In my view, Attorney Roitburd cannot supply by default

the grounds for a reduction of a sanction that he never opposed.

It must be remembered that Attorney Roitburd has neither alleged

nor offered any evidence from which any fact in his favor could

possibly    be    found.        There    is       also    no     claim     that       the    facts

alleged     in    the    OLR's     complaint,            which      the    referee          deemed

admitted     by     virtue       of     Attorney          Roitburd's           default,        are

erroneous,       much    less    clearly        so.           See   In    re     Disciplinary

Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,

675   N.W.2d 747        (referee's      findings         of    fact      must    be    affirmed

unless clearly erroneous).

      ¶64   We     must        therefore      resolve           this      case        with     the

understanding that the facts are exactly as the OLR alleges.
Those facts include Attorney Roitburd's failure to return to his

mother's    estate       over    $43,000      in      unaccounted-for            assets;       his

repeated    failure       to    appear     at      court       hearings         scheduled       to

discuss estate assets; the circuit court's issuance of a bench

warrant for him; the circuit court's removal of him as personal

representative; his repeated failure to meet with the successor

personal representative to discuss estate assets; and his total

refusal to cooperate with the OLR.



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       ¶65   Our precedent shows that these facts merit a two-year

license suspension.              See, e.g., In re Disciplinary Proceedings

Against Goldstein, 2010 WI 26, 323 Wis. 2d 706, 782 N.W.2d 388

(imposing     a    two-year      suspension            for      misconduct      that     included

converting nearly $70,000 from three probate estates for which

the    attorney        served     as     special            administrator         or    personal

representative);           In     re     Disciplinary                  Proceedings       Against

Krezminski,        2007     WI     21,    299          Wis. 2d 152,         727        N.W.2d 492

(imposing a two-year suspension for converting client funds that

the lawyer held in his capacity as personal representative for

an estate, knowingly offering false evidence, and failing to

communicate with a client).

       ¶66   I    would    therefore         order          a   two-year    suspension.           I

would not do as the majority has done:                           construe the slimness of

the default record——caused by Attorney Roitburd's total failure

to    join   issue——as       a    mitigating            circumstance.             We    recently

explained that it is unnecessary for a referee to take evidence

regarding        the    allegations          of        an       OLR    complaint        after    a
declaration       of   default.          See      In    re      Disciplinary       Proceedings

Against      Boyle,       2015 WI      90,     ¶¶53-55,           364     Wis. 2d 544,          869

N.W.2d 475        (deeming       unnecessary            the       referee's       post-default

"prove-up" hearing and reducing requested costs by 40% as a

result).     Today's decision teaches just the opposite.

       ¶67   For the reasons set forth, I dissent regarding the

discipline.

       ¶68   I    am    authorized       to       state         that    Justice        ANN   WALSH
BRADLEY joins this opinion.

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                      ATTACHMENT A
      SUPREME COURT INTERNAL OPERATING PROCEDURES




II. DECISIONAL PROCESS – APPELLATE AND ORIGINAL JURISDICTION


      ....




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