                                                              2013 WI 26

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               12AP1245-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Eric S. Brittain, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Eric S. Brittain,
                                  Respondent.


                           DISCIPLINARY PROCEEDINGS AGAINST BRITTAIN

OPINION FILED:          March 22, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2013 WI 26
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.     2012AP1245-D


STATE OF WISCONSIN                             :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Eric S. Brittain, Attorney at Law:

Office of Lawyer Regulation,                                          FILED
              Complainant,
                                                                 MAR 22, 2013
        v.
                                                                    Diane M. Fremgen
                                                                 Clerk of Supreme Court
Eric S. Brittain,

              Respondent.




        ATTORNEY      disciplinary    proceeding.           Attorney        publicly

reprimanded.


        ¶1    PER CURIAM.      We review the report and recommendation

of the referee, Richard C. Ninneman, approving a stipulation
filed    by    the   Office   of Lawyer Regulation         (OLR)     and    Attorney

Eric S.       Brittain    regarding   Attorney      Brittain's        professional
misconduct in the handling of two client matters.                     The OLR and

Attorney      Brittain    stipulate   that    Attorney      Brittain       committed
professional         misconduct.      The    referee     concluded         that    the

appropriate sanction for the misconduct is a public reprimand.
                                                                                 No.        2012AP1245-D



Upon careful consideration, we adopt the stipulated facts and

the referee's conclusions of law.                          We also agree that a public

reprimand is an appropriate level of discipline, and we deem it

appropriate to order Attorney Brittain to pay the full costs of

the proceeding, which are $3,348.31 as of January 31, 2013.

     ¶2      Attorney      Brittain          was      licensed         to   practice             law     in

Wisconsin    in    2003,    and    most        recently           practiced        in        Glendale,

Wisconsin.         He   has       not        previously           been      the            subject       of

professional discipline.

     ¶3      On June 5, 2012, the OLR filed a complaint alleging

four counts of misconduct arising out of Attorney Brittain's

representation of clients in two criminal matters.                                     In the first

matter, Attorney Brittain was retained to defend V.K., who was

charged   with     misdemeanor          battery            and    disorderly               conduct       in

Waukesha County.        Judge J. Mac Davis initially served as the

presiding judge in the matter.

     ¶4      On November 25, 2008, Attorney Brittain appeared in

court for the first day of a scheduled jury trial and made an
opening   statement     on      behalf        of       V.K.       In    the      course           of    the

opening statement Attorney Brittain told the jury, "I want to
talk about violence.            And, well, what it is like to be in an

environment    where    people      yell           and     scream.          And        I    know       that
environment    because      I   grew         up       in   one,    and      my    mom           was    very

erratic, very emotionally unstable."                             Judge Davis immediately
interrupted       and   admonished            Attorney           Brittain         that           it    was

inappropriate      to   reflect         on    personal           matters         in        an    opening

statement.     After Judge Davis asked that he refocus his remarks,
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Attorney Brittain approached his client, put his hands on his

client's shoulders, and told the jury, "I know . . . a brave man

when I see one."

      ¶5   Judge    Davis       immediately    interrupted      again    and

admonished Attorney Brittain that his conduct was inappropriate.

Judge Davis directed Attorney Brittain to return to the lectern

and instructed that he was not allowed to vouch for his client

and that he should not put his hands on his client or talk about

his client's character in that fashion.

      ¶6   Continuing     his   opening   statement,   Attorney    Brittain

told the jury:

           Imagine what it is to be falsely accused of
      something, and to know what a conviction would mean to
      you, especially if you have a two-year[-]old son and
      your wife is emotionally unstable and erratic, and
      you're falsely accused, what that means.

           I'm going to tell you what happened that day.
      I'm going to tell you about [the defendant].        I'm
      going to do it in the first person narrative as if I
      am [the defendant] so that you can know what happened.
      ¶7   Judge Davis again interrupted and said the court would
not allow Attorney Brittain to make an opening statement in the

form of a first person narrative.         After Attorney Brittain said
he would renew an earlier motion seeking Judge Davis's recusal

based on alleged bias, Judge Davis excused the jury.                 In the

conference that followed outside the presence of the jury, Judge

Davis said Attorney Brittain was raising his voice and sticking

his finger in the face of the assistant district attorney who

was   prosecuting   the   case.     Attorney   Brittain   disagreed     with


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Judge      Davis's    statements.           He     also       continued        to    challenge

rulings     made     by    Judge    Davis    as    to     the    form    of        the   opening

statement.         Judge     Davis    reaffirmed          his    earlier           rulings   and

instructed        Attorney     Brittain      not    to        give     any     first      person

remarks, not to vouch for his client's credibility, and not to

talk about his personal life experiences.

      ¶8     After the jury returned to the courtroom, Judge Davis

sustained two more objections by the assistant district attorney

based on Attorney Brittain making inappropriate comments during

his opening statement.              After Judge Davis sustained the second

objection,        Attorney    Brittain      turned       to     look    at     Judge      Davis,

paused,     and     then    said    to   the      jury,       "And     so,     [l]adies      and

[g]entleman, under a lot of——a lot of obstacles, we are here

today."

      ¶9     After opening statements were concluded, Judge Davis

again excused the jury and found Attorney Brittain in summary

contempt     of    court     for the     comment        about     "obstacles."             Judge

Davis sanctioned Attorney Brittain with a forfeiture of $50.                                  On
February     16,     2009,    the    court       entered        the    written       order    of

contempt against Attorney Brittain based on the oral contempt
order of November 25,              2008.       Attorney         Brittain       appealed      the

contempt order.            The court of appeals affirmed Judge Davis's
order holding Attorney Brittain in contempt.

      ¶10    The OLR's complaint alleged that by injecting personal
and   irrelevant          information    about      himself          during        his   opening




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statement, Attorney Brittain violated SCR 20:3.4(e);1 by vouching

for his client during his opening statement, Attorney Brittain

violated    SCR    20:3.4(e);     and     by    suggesting       in     his    opening

statement   that    Judge    Davis      was    creating    "obstacles"         to   the

defense,    Attorney     Brittain       engaged     in    conduct       intended     to

disrupt a tribunal, in violation of SCR 20:3.5(d).2

     ¶11    The    other    client      matter      detailed       in    the     OLR's

complaint involved Attorney Brittain's representation of R.C.,

who was charged in Milwaukee County with burglary of a building

or dwelling.       Judge Jean DiMotto served as the presiding judge

in the matter.       On November 11, 2009, the matter came before

Judge DiMotto on the defendant's arraignment.

     ¶12    After Judge DiMotto had accepted the defendant's not

guilty plea and was prepared to adjourn the proceeding, Attorney

Brittain initiated a further exchange with the court regarding

discovery demands, including a request to have access to his

client's vehicle, which the City of Milwaukee Police Department

had impounded, for an expert inspection.                       Because there were
differences    between     the   parties       as   to   the    discovery      request


     1
       SCR 20:3.4(e) states a lawyer shall not "in trial, allude
to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence,
assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the
culpability of a civil litigant or the guilt or innocence of an
accused; . . . ."
     2
       SCR 20:3.5(d) states a lawyer shall not "engage in conduct
intended to disrupt a tribunal."

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concerning the vehicle and there was no motion before the court

on that issue, Judge DiMotto told Attorney Brittain that the

issue was premature and that he should bring a motion.                                  Judge

DiMotto then indicated the proceeding was closed for the day.

        ¶13    Raising    his     voice,       Attorney      Brittain       continued      to

attempt to address the court about the discovery issues.                                   He

repeatedly       disregarded       Judge       DiMotto's     instructions         that    the

case was done for the day and said, "You[r] Honor, I believe

your behavior is inappropriate."

        ¶14    On the morning of December 17, 2009, the matter came

before Judge DiMotto for a hearing on the defendant's motion to

compel discovery.          During the hearing, again raising his voice,

Attorney       Brittain    asked       Judge    DiMotto      to    recuse     herself     and

called        her   statements          about        his     pattern        of     behavior

"ridiculous."             Judge        DiMotto       adjourned       the      hearing      at

approximately 10:45 a.m.                The hearing on the motion reconvened

at 2:05 p.m. that afternoon.                   In opening the afternoon portion

of the hearing, Judge DiMotto noted the time and said that the
parties "left on an adjourned basis about 10:45 [a.m.] perhaps

this morning."           Attorney Brittain interrupted and objected to
Judge DiMotto's having characterized the close of the morning's

hearing as an adjournment.
        ¶15    In   support       of    his        motion    for    recusal,       Attorney

Brittain denied that he had shouted at Judge DiMotto.                                 He said
Judge         DiMotto     had      engaged          in      behaviors         which      were

"inappropriate," that she had raised her voice at him, and he

suggested that Judge DiMotto suffered from a physical or health
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                                                                        No.      2012AP1245-D



issue that affected her "ability to be appropriate" and which

could affect his client's right to a fair trial.

     ¶16       The     OLR's    complaint        alleged      that     by     engaging     in

abusive, belligerent, and obstreperous conduct directed at Judge

DiMotto    in    the     course    of   representing           his    client,      Attorney

Brittain engaged in conduct intended to disrupt a tribunal, in

violation of SCR 20:3.5(d).

     ¶17       Attorney Brittain filed an answer on July 24, 2012.

On December 28, 2012, the OLR and Attorney Brittain entered into

a stipulation whereby Attorney Brittain admitted the allegations

in the OLR's complaint.             The stipulation noted that the OLR was

requesting that this court publicly reprimand Attorney Brittain.

Attorney       Brittain        indicated    he        did    not     oppose      the    OLR's

recommendation.          On January 11, 2013, the referee entered an

order approving the stipulation and recommending that the court

publicly       reprimand        Attorney     Brittain         for     his     professional

misconduct.

    ¶18        This court will affirm a referee's findings of fact
unless they are clearly erroneous, but conclusions of law are

reviewed de novo.              See In re Disciplinary Proceedings Against

Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                               This

court     is     free     to     impose      whatever         discipline         it     deems

appropriate, regardless of the referee's recommendation.                               See in

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

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

     ¶19       After    careful     review       of    the    record,       we   adopt    the

referee's findings of fact and conclusions of law.                                    We also
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                                                         No.        2012AP1245-D



agree with the referee that a public reprimand is an appropriate

level of discipline.     We further deem it appropriate to require

Attorney Brittain to pay the full costs of the proceeding, which

are $3,348.31.

     ¶20   IT   IS   ORDERED   that   Eric   S.   Brittain     is     publicly

reprimanded for professional misconduct.

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

of this order, Eric S. Brittain shall pay the Office of Lawyer

Regulation the costs of this proceeding.

     ¶22   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.




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