                                                         2017 WI 48

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:                2016AP2267-D
COMPLETE TITLE:          In the Matter of Disciplinary Proceedings
                         Against Adam A. Gillette, Attorney at Law:

                         Office of Lawyer Regulation,
                                   Complainant,
                              v.
                         Adam A. Gillette,
                                   Respondent.
                            DISCIPLINARY PROCEEDINGS AGAINST GILLETTE

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

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

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


ATTORNEYS:
                                                                          2017 WI 48
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.     2016AP2267-D


STATE OF WISCONSIN                              :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Adam A. Gillette, Attorney at Law:

Office of Lawyer Regulation,                                           FILED
            Complainant,
                                                                  MAY 11, 2017
       v.
                                                                     Diane M. Fremgen
                                                                  Clerk of Supreme Court
Adam A. Gillette,

            Respondent.




       ATTORNEY    disciplinary        proceeding.         Attorney's         license

suspended.



       ¶1   PER CURIAM.        The Office of Lawyer Regulation (OLR)

and Attorney Adam A. Gillette have filed a stipulation pursuant

to    Supreme   Court   Rule   (SCR)    22.12       that   Attorney       Gillette's

license to practice law in Wisconsin should be suspended for a

period of 60 days, as discipline reciprocal to that imposed by
                                                                   No.     2016AP2267-D



the Supreme Court of Minnesota.1               After reviewing the matter, we

approve     the    stipulation   and     impose     the    stipulated      reciprocal

discipline.        Although the stipulation did not expressly request

that we impose the other forms of discipline imposed by the

Supreme     Court    of   Minnesota,     we    also   follow      our    practice    of

ordering       Attorney     Gillette     to    comply      with    the     terms    and

conditions of the Minnesota disciplinary order, including a two-

year period of probation.              We do not impose any costs in this

stipulated matter.

      ¶2     Attorney Gillette was admitted to the practice of law

in Minnesota in October 2003.                  He was also admitted to the

practice of law in this state in December 2009.                          According to

the stipulation, Attorney Gillette's most recent professional

address was a law firm in Minneapolis, Minnesota.

      ¶3     Attorney Gillette has not been the subject of previous

professional discipline in this state.                  His license to practice

law    in    Wisconsin,       however,        is   currently      administratively

suspended.        In June 2016 his license was suspended for failure
to    comply      with    mandatory    continuing         legal   education        (CLE)

reporting requirements.          In October 2016 his license was also

      1
       The stipulation in this matter was filed with the court on
February 28, 2017, and was promptly taken under advisement. On
April 19, 2017, nearly two months later, the OLR filed a
memorandum in support of the stipulation.     Supreme Court Rule
22.12 does not provide a formal deadline for filing such a
memorandum, but this belated submission arrived well after the
court had deliberated and decided the matter.     Nothing in the
memorandum has affected the court's decision to accept the
stipulation.


                                          2
                                                                            No.    2016AP2267-D



suspended for failure to pay bar dues and assessments and for

failure to file a trust account certificate.

       ¶4     On November 21, 2016, the OLR filed a disciplinary

complaint alleging that Attorney Gillette should be subject to

reciprocal discipline due to a 60-day suspension imposed by the

Supreme Court of Minnesota.                      On February 28, 2017, after the

OLR's complaint had been served on Attorney Gillette, the OLR

and    Attorney         Gillette         entered      into     a    stipulation         whereby

Attorney Gillette agreed that the facts alleged in the OLR's

complaint supported the imposition of a 60-day suspension as

reciprocal discipline.

       ¶5     According            to    the     stipulation        and      the    Minnesota

disciplinary records attached to the OLR's complaint, Attorney

Gillette committed a number of violations of the Minnesota Rules

of Professional Conduct (MRPC) in connection with two client

matters.

       ¶6     In the first matter, Attorney Gillette and the firm

with    which      he    was       associated        were    retained      to     represent    a
husband      and    wife      in     connection       with    possible      claims       against

investment         brokers         due    to    failed       investments.           The     firm

determined         in   April      2010       that   the    clients       were    unlikely    to

prevail      on    any     claims.            From   this    point    forward,          Attorney

Gillette      and       the    firm      did    no   further       work    on     the    matter.

Attorney Gillette was directed to convey the firm's opinion to

the clients.

       ¶7     Attorney Gillette, however, did not advise the clients
of    this   opinion.           To      the    contrary,     he    falsely       informed    the
                                                 3
                                                                     No.     2016AP2267-D



husband on multiple occasions over the next five years that he

was continuing to pursue the matter.                    Attorney Gillette even

went so far as to tell the client that the matter had been

settled for a substantial sum of money.                      Ultimately, Attorney

Gillette reported his deception to his law firm.                           In the time

period when he had been misleading the client about the progress

of claims against the brokers, the statute of limitations for

any such claim expired.

    ¶8      In the second client matter, Attorney Gillette and his

firm were retained in December 2014 by a check cashing business

to address a situation where the client believed that its bank

had improperly reversed a deposit.                 The client paid an advanced

fee to the law firm.              Attorney Gillette, however, failed to

perform any work on the matter or to take any action to preserve

any claims the client may have had against the bank.                              In May

2015 the statute of limitations expired for any claim by the

client against the bank.           As had occurred with the first client

matter discussed above, ultimately Attorney Gillette reported
his neglect of the matter to his law firm.

    ¶9      Attorney         Gillette       stipulated        in     the      Minnesota

disciplinary     proceeding       that      his    conduct    in     the    two   client

representations        had   violated       MRCP    1.1,     1.3,    1.4,     4.1,     and

8.4(c).

    ¶10     In   its    October      10,    2016    disciplinary       order,     In    re

Disciplinary     Action      Against       Gillette,   886     N.W.2d       214   (Minn.

2016),    the    Supreme     Court     of    Minnesota       noted    that     Attorney
Gillette had produced evidence that during the relevant time
                                            4
                                                                         No.     2016AP2267-D



period he had suffered from an untreated mental-health issue,

for which he had subsequently sought treatment.                                He had also

produced evidence that he was remorseful for his misconduct.

Ultimately,        given       this   partially          mitigating       evidence,       the

Supreme Court of Minnesota accepted the joint recommendation of

the   parties      for     a    60-day    suspension           of   Attorney     Gillette's

license to practice law in Minnesota.                      The Minnesota order also

directed     Attorney          Gillette    within        one    year    to     successfully

complete     the    professional          responsibility            examination    that    is

required for admission to the practice of law in that state.

Finally, the order also placed Attorney Gillette on probation

with a list of conditions for a period of two years following

the reinstatement of his Minnesota license.2

      ¶11    Under       SCR     22.22(3),3       this    court       shall    impose     the

identical discipline imposed in another jurisdiction, unless one

      2
       The SCR 22.12 stipulation notes that the Supreme Court of
Minnesota   has   already   conditionally   reinstated   Attorney
Gillette's license to practice law in that state.      See In re
Disciplinary Action Against Gillette, 888 N.W.2d 684 (Minn.
2016).
      3
          SCR 22.22(3) provides:

           (3) The supreme court shall impose the identical
      discipline or license suspension unless one or more of
      the following is present:

           (a) The procedure in the other jurisdiction was
      so lacking in notice or opportunity to be heard as to
      constitute a deprivation of due process.

           (b) There was such an infirmity of proof
      establishing the misconduct or medical incapacity that
      the supreme court could not accept as final the
                                                      (continued)
                                              5
                                                                No.    2016AP2267-D



or more of three exceptions apply.                In his stipulation with the

OLR, Attorney Gillette states that he does not claim any of the

exceptions in SCR 22.22(3).           He agrees that this court should

impose the 60-day suspension of his license to practice law in

Wisconsin sought by the OLR.

       ¶12   Attorney Gillette further states that the stipulation

was not the result of plea bargaining, that he understands the

misconduct allegations against him and his right to contest the

matter, and that he is aware of the potential ramifications of

the stipulated level of discipline.                 He acknowledges his right

to consult with counsel.            He asserts that he is entering into

the stipulation knowingly and voluntarily, and that his entry

into the stipulation represents his decision not to contest the

misconduct allegations or the level of discipline sought by the

OLR.

       ¶13   Having reviewed the matter, we accept the stipulation

and impose a 60-day suspension of Attorney Gillette's license to

practice     law   in   Wisconsin,    as       discipline   reciprocal    to    that
imposed by the Supreme Court of Minnesota.

       ¶14   We note, however, that the Minnesota order contained

additional elements of discipline beyond the imposition of a 60-

day suspension of his license to practice law in that state.


       conclusion in      respect    to    the    misconduct   or     medical
       incapacity.

            (c)   The   misconduct   justifies               substantially
       different discipline in this state.


                                           6
                                                                            No.     2016AP2267-D



For example, the Minnesota order directed Attorney Gillette to

complete      the    professional       responsibility               examination      required

for admission to the bar of that state and imposed a two-year

period      of    probation      with   a    number          of     specified      conditions.

These elements of the Minnesota disciplinary order are generally

not   imposed       in     Wisconsin    disciplinary              proceedings.        In   such

situations, this court orders the respondent attorney to comply

with the terms and conditions imposed by the disciplinary order

in    the    other       jurisdiction       in       order    to     make   the     discipline

identical        under     SCR   22.22.          See,      e.g.,      In    re    Disciplinary

Proceedings Against Hooker, 2010 WI 13, ¶11, 322 Wis. 2d 552,

779 N.W.2d 419; In re Disciplinary Proceedings Against Moree,

2004 WI 118, 275 Wis. 2d 279, 684 N.W.2d 667.                                    Although the

stipulation spoke in terms of agreeing to the imposition of a

60-day suspension, it also acknowledged these other terms and

conditions of the Minnesota disciplinary order.                                  Consequently,

we follow our practice of ordering Attorney Gillette to comply

with them.
       ¶15       Because    this   matter            has     been    resolved      through    a

stipulation without the appointment of a referee and the OLR has




                                                 7
                                                            No.   2016AP2267-D



not sought the imposition of any costs, we do not impose them in

this matter.4

     ¶16   IT IS ORDERED that the license of Adam A. Gillette to

practice law in Wisconsin is suspended for a period of 60 days,

effective May 31, 2017.

     ¶17   IT   IS   FURTHER   ORDERED   that   Adam   A.   Gillette    shall

comply with all of the terms and conditions set forth in the

Supreme Court of Minnesota's order dated October 10, 2016. In re

Disciplinary    Action   Against   Gillette,    886    N.W.2d     214   (Minn.

2016).

     ¶18   IT   IS   FURTHER   ORDERED   that   Adam   A.   Gillette    shall

comply with the provisions of SCR 22.26 concerning the duties of

a person whose license to practice law in Wisconsin has been

suspended.




     4
       In addition to filing a belated memorandum in support of
the stipulation, the OLR also filed a belated statement of costs
on April 19, 2017.   It reported counsel fees and disbursements
in the amount of $469.00, but recommended that the court not
assess any costs against Attorney Gillette because he had
entered   into  what  it   characterized  as   a  "comprehensive
stipulation" that had avoided the appointment of a referee and
"the expenditure of significant lawyer regulation system
resources."


                                    8
                                                      No.    2016AP2267-D



     ¶19   IT   IS   FURTHER   ORDERED   that   compliance   with    all

conditions of this order is required for reinstatement from the

disciplinary suspension imposed herein.5




     5
       In   addition  to   obtaining   reinstatement  from   the
disciplinary suspension imposed by this order, before he is able
to practice law in Wisconsin, Attorney Gillette will also be
required to complete the procedures for reinstatement from the
administrative suspensions currently in effect for failure to
comply with the mandatory CLE reporting requirements, for
failure to pay applicable bar dues and assessments, and for
failure to file a trust account certificate.


                                   9
                                                                      No.    2016AP2267-D.ssa


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

dissenting      in   part).        I   concur      with      the    per     curiam    opinion

accepting the stipulation between Attorney Gillette and OLR and

suspending Attorney Gillette's license for 60 days as reciprocal

discipline identical to that imposed by the Supreme Court of

Minnesota.

    ¶21     I      dissent      from   the        per   curiam's          order     requiring

Attorney    Gillette       to      comply    with       the    terms       and     conditions

imposed    by    the   disciplinary         order       in    Minnesota       to    make    the

discipline identical under SCR 22.22(3).

    ¶22     This proceeding raises two questions for me.

    ¶23     First, the proceeding raises the question whether the

court has extended a stipulation beyond its terms.                                   Attorney

Gillette     and     the     OLR    did     not     stipulate        to     any    Minnesota

discipline other than a 60-day suspension.

    ¶24     Second, the proceeding raises the question of what is

identical discipline in a reciprocal discipline matter.                               Supreme

Court Rule 22.22(3) provides that in reciprocal discipline cases
this court "shall impose the identical discipline" imposed by

the other state.

    ¶25     Minnesota has imposed forms of discipline on Attorney

Gillette        that       Wisconsin         typically             does      not      impose.

Nevertheless, the per curiam imposes this Minnesota discipline

on Attorney Gillette as part of Attorney Gillette's Wisconsin

discipline.

    ¶26     Two      other    reciprocal          disciplinary         proceedings         have
been pending before this court while the instant case has been

                                             1
                                                                 No.    2016AP2267-D.ssa


considered:      In re Disciplinary Proceedings Against Buzawa, No.

2016AP2351-D,     unpublished     order      (Wis.    S.    Ct.    Apr.       10,   2017;

separate   writing     May      11,     2017),    and      In     re     Disciplinary

Proceedings      Against    Peiss,    2017   WI   49,      ___    Wis. 2d ___,         ___

N.W.2d ___.      They too present issues about identical reciprocal

discipline.

                                         I

     ¶27   Attorney        Gillette's    stipulation       with        OLR    reads,   in

relevant part, as follows:

     10. Gillette agrees that it would be appropriate for
     the Supreme Court of Wisconsin to impose the level of
     discipline sought by OLR's Director, specifically, a
     60 day suspension of Gillette's license to practice
     law in Wisconsin. (Emphasis added.)
     ¶28   This is the only provision in the stipulation relating

to the Minnesota or Wisconsin discipline.

     ¶29   OLR's Memorandum in Support of SCR 22.12 Stipulation,

filed on April 19, 2017, states:             "Gillette and OLR signed a SCR

22.12 Stipulation requesting the Supreme Court of Wisconsin to

approve    the     parties'      stipulation         and    suspend          Gillette's

Wisconsin license to practice law for 60 days based upon the

Minnesota action."1




     1
       The per curiam is critical of the length of time (about
two months) it took the OLR to file this memorandum with the
court.

                                                                             (continued)
                                         2
                                                                      No.   2016AP2267-D.ssa


    ¶30     It   is    evident       from          the    stipulation       and    the     OLR

memorandum that Attorney Gillette stipulated only to the 60-day

suspension of his license to practice law in Wisconsin.                              He did

not stipulate to any other reciprocal discipline.                           He could have

so stipulated, but he did not.                     He might so stipulate if asked,

but he has not been asked.

    ¶31     Instead, the court takes a short-cut and reads the

stipulation to include terms not stated.                           To respond to this

criticism    that     the    court     has          not    abided     by    the     parties'

stipulation, the court in n.4 tries to prove the stipulation is

broader   than   its    terms.            It       bootstraps        Litigation     Counsel

William     Weigel's        description             of     the     stipulation        as     a

"comprehensive      stipulation"       in          his    separate    statement      of    OLR

costs to mean that Attorney Gillette stipulated to more than the

60-day suspension.

    ¶32     Attorney        John     T.        Payette,          Assistant        Litigation

Counsel, not Attorney Weigel, signed the Complaint and Motion

for reciprocal discipline on November 21, 2016, the stipulation



     I am confident that the OLR Procedure Review Committee
(Professor Marsha Mansfield, University of Wisconsin Law School,
Reporter) will examine the time it takes each entity in the
chain of discipline proceedings to perform its function,
including the OLR, the Preliminary Review Committee, the
referee, and this court.       This court's Internal Operating
Procedures (printed in volume 6 of the Wisconsin Statutes)
provide that per curiam opinions in attorney disciplinary
proceedings are prepared by a court commissioner for the court's
consideration. Wis. S. Ct. IOP III-H (Feb. 13, 2017).

     Several years ago when I did a "time" study I found what
appeared to be unwarranted delay at every step.


                                               3
                                                                     No.     2016AP2267-D.ssa


with    Attorney      Gillette        on   February         28,   2017,      and    the     OLR

Memorandum      on     April     19,       2017.            OLR    Attorney        Payette's

description of the stipulation, not Attorney Weigel's obvious

off-hand comment in a document relating to costs, is of import.

       ¶33   The     instant     case      is    not      consistent    with       Office    of

Lawyer Regulation v. Curtin, 2014 WI 90, 357 Wis. 2d 247, 849

N.W.2d 747,     or    In    re   Disciplinary             Proceedings       Against    Milos,

2012 WI 6, 338 Wis. 2d 316, 808 N.W.2d 128.

       ¶34   In Curtin, the stipulation filed by OLR and Attorney

Curtin requested the court to publicly reprimand Attorney Curtin

as reciprocal discipline identical to that imposed by Arizona;

no    request   was    made      to    impose        other    discipline         imposed     by

Arizona.     Arizona imposed a reprimand, a year of probation, and

participation in a trust account ethics program.                             The Wisconsin

Supreme Court imposed only a public reprimand, not the other

discipline imposed by Arizona.

       ¶35   This court does not explain why Attorney Gillette is

being treated differently than Attorney Curtin, although the key
aspects of the stipulations in the two cases are the same.

       ¶36   In contrast, in In re Disciplinary Proceedings Against

Milos, 2012 WI 6, 338 Wis. 2d 316, 808 N.W.2d 128, the OLR and

Attorney     Milos     stipulated          to       the    imposition       of     discipline

identical to that imposed by Illinois.                        Illinois imposed a 90-

day    suspension     and    directed           Attorney     Milos     to    complete       the

Illinois Commission's Professionalism Seminar and to reimburse

the Client Protection Program Trust Fund.                         This court ordered a
90-day suspension and compliance "with the terms and conditions

                                                4
                                                      No.    2016AP2267-D.ssa


set forth in the Illinois Supreme Court's order."                 This court

does not explain why Attorney Gillette is being treated the same

as Attorney Milos although the key aspects of the stipulations

in the two cases are different.2

                                    II

     ¶37   The court's order imposing the Minnesota terms to make

the discipline identical in Wisconsin relies on two prior cases:

In re Disciplinary Proceedings Against Moree, 2004 WI 118, 275

Wis. 2d 279,    281,   684   N.W.2d 667,   and   In     re       Disciplinary

Proceedings Against Hooker, 2010 WI 13, 322 Wis. 2d 552, 779

N.W.2d 419.    Neither case is applicable in the instant case.

     ¶38   In Moree, unlike in the instant case, "[t]he OLR and

Attorney   Moree   request    and    stipulate   that       as     reciprocal

discipline this court impose a three-month suspension . . . and

order him to comply with the terms and conditions established by

the Illinois Supreme Court."        Moree, 275 Wis. 2d at 281.          Moree

agreed to imposition of the Illinois conditions.             See also the

Milos case, described above.


     2
       For other cases in which the court imposed another state's
discipline, see In re Disciplinary Proceedings Against Waters,
2016 WI 15, 367 Wis. 2d 279, 876 N.W.2d 145 (the respondent
attorney did not respond to the court's order to show cause why
identical reciprocal discipline was unwarranted; the court
ordered compliance with    restitution and (unstated) conditions
imposed by Michigan); In re Disciplinary Proceedings Against
Manion, 2016 WI 88, 372 Wis. 2d 34, 886 N.W.2d 371 (the
respondent attorney did not respond to the court's order to show
cause why identical reciprocal discipline was unwarranted; the
court "impose[d] discipline substantially identical to that
imposed by the Supreme Court of Arizona"; Arizona had ordered
restitution and (unstated) conditions).


                                     5
                                                               No.    2016AP2267-D.ssa


    ¶39      In In re Disciplinary Proceedings Against Hooker, 2010

WI 13, ¶9, 322 Wis. 2d 552, 779 N.W.2d 419, this court ordered

Attorney Hooker to show cause why the imposition of discipline

identical    to    that   imposed    by    Colorado    would     be    unwarranted.

Attorney Hooker did not respond to the court order.                       The court

imposed a form of discipline imposed by Colorado even though

Wisconsin does not typically impose that form of discipline.

    ¶40      This court in the instant case has not given Attorney

Gillette or OLR notice and an opportunity to be heard on the

issue of what constitutes identical discipline.                       Instead, this

court unilaterally enlarges Gillette's and the OLR's stipulation

and decides by itself and for itself what constitutes identical

discipline.

    ¶41      As far as I am concerned, this court has overstepped

the stipulation and has not followed prior reciprocal discipline

cases in the instant case.

    ¶42      The    instant    case       made    me   curious        about    other

reciprocal discipline cases.              In searching the OLR discipline
cases of the last five years, I found 24 reciprocal discipline

cases   to    discuss     in   considering       the   instant        case,   In   re

Disciplinary       Proceedings      Against      Buzawa,   No.        2016AP2351-D,

unpublished order (Wis. S. Ct. Apr. 10, 2017; separate writing




                                          6
                                                No.   2016AP2267-D.ssa


May 11, 2017), and In re Disciplinary Proceedings Against Peiss,

2017 WI 49, ___ Wis. 2d ___, ___ N.W.2d ___.3

     ¶43   In most of these reciprocal discipline cases in the

last five years, identical discipline could be and was imposed

in Wisconsin.

     3
       In many of these cases, the respondent attorney and OLR
stipulated to the reciprocal discipline or the respondent
attorney responded in some fashion to the OLR's complaint. See,
e.g., In re Disciplinary Proceedings Against Silberman, 2017 WI
10, 373 Wis. 2d 187, 890 N.W.2d 586; In re Disciplinary
Proceedings Against Jones, 2016 WI 86, 372 Wis. 2d 23, 886
N.W.2d 92; In re Disciplinary Proceedings Against Boyle, 2016 WI
40, 368 Wis. 2d 590, 879 N.W.2d 114; In re Disciplinary
Proceedings Against Borman, 2016 WI 25, 367 Wis. 2d 543, 877
N.W.2d 370; In re Disciplinary Proceedings Against Aleman, 2015
WI 112, 365 Wis. 2d 676, 872 N.W.2d 655; In re Disciplinary
Proceedings Against Fischer, 2014 WI 107, 852 N.W.2d 487; In re
Disciplinary Proceedings Against Albert, 2014 WI 105, 852
N.W.2d 488; In re Disciplinary Proceedings Against Nickitas,
2014 WI 12, 352 Wis. 2d 641, 843 N.W.2d 438; In re Disciplinary
Proceedings Against Stanek, 2013 WI 41, 347 Wis. 2d 216, 830
N.W.2d 639; In re Disciplinary Proceedings Against Butler, 2012
WI 37, 340 Wis. 2d 1, 811 N.W.2d 807; In re Disciplinary
Proceedings Against Addison, 2012 WI 38, 340 Wis. 2d 16, 813
N.W.2d 201.

     In several of these cases, the respondent attorney did not
answer the OLR complaint and motion for reciprocal discipline.
See In re Disciplinary Proceedings Against Gonzalez, 2016 WI 87,
372 Wis. 2d 27, 886 N.W.2d 368; In re Disciplinary Proceedings
Against Waters, 2016 WI 15, 367 Wis. 2d 279, 876 N.W.2d 145; In
re Disciplinary Proceedings Against Stockman, 2014 WI 113, 358
Wis. 2d 341, 854 N.W.2d 370; In re Disciplinary Proceedings
Against Hicks, 2013 WI 9, 345 Wis. 2d 265, 826 N.W.2d 41; In re
Disciplinary Proceedings Against Payne, 2012 WI 109, 344
Wis. 2d 20, 821 N.W.2d 246.

     In a few of these cases the respondent attorney challenged
the other state's disciplinary proceedings.     See, e.g., In re
Disciplinary Proceedings Against Selmer, 2016 WI 71, 371
Wis. 2d 377, 882 N.W.2d 815;     In re Disciplinary Proceedings
Against Strizic, 2015 WI 57, 362 Wis. 2d 659, 864 N.W.2d 869.


                                7
                                                                   No.   2016AP2267-D.ssa


      ¶44   The other reciprocal discipline cases pose a variety

of issues.       I have discussed Curtin and Milos above.                    Here is a

synopsis of some of these other reciprocal discipline cases.

      ¶45   In In re Disciplinary Proceedings Against Taber, 2012

WI 9, 338 Wis. 2d 534, 809 N.W.2d 29, Arizona imposed a one-year

suspension,      probation     with    conditions,           and   restitution.      The

attorney did not respond to this court's order to show cause why

reciprocal discipline was not warranted.                      The Wisconsin Supreme

Court suspended the attorney's license for one year and ordered

the   attorney      to   comply       with       the    terms      of    probation   and

restitution.       For other reciprocal discipline cases in which the

attorney did not respond to the court's order to show cause and

the court imposed conditions imposed by the other state not

generally     imposed     in      Wisconsin,           see    In    re     Disciplinary

Proceedings Against Waters, 2016 WI 15, 367 Wis. 2d 279, 876

N.W.2d 145; In re Disciplinary Proceedings Against Manion, 2016

WI 88, 372 Wis. 2d 34, 886 N.W.2d 371.

      ¶46   In     In re Disciplinary             Proceedings Against Eichhorn-
Hicks, 2012 WI 18, 338 Wis. 2d 753, 809 N.W.2d 379, Minnesota

imposed a public reprimand, a one-year suspension, and probation

for two years with conditions.                   Because the period of probation

(without     any    violation)        expired       before      this     court   imposed

reciprocal discipline, the discipline imposed in Wisconsin was

identical to that imposed by Minnesota:                      a public reprimand and

one-year suspension.           The issue in Eichhorn-Hicks was whether




                                             8
                                                        No.    2016AP2267-D.ssa


Wisconsin's one-year suspension should be effective as of the

date of the order or whether it should be retroactive.4

      ¶47    In In re Disciplinary Proceedings Against Nett, 2014

WI   106,    358   Wis. 2d 300,   852   N.W.2d 486,   Minnesota     suspended

Attorney Nett's Minnesota license with no right to petition for

reinstatement for a minimum of nine months.              The attorney did

not timely respond to the Wisconsin Supreme Court's order to

show cause why reciprocal discipline is not warranted but sent a

letter to the OLR stating that she did not contest the OLR's

complaint requesting the court to suspend her license for one

year.       This court stated it was imposing identical discipline

and suspended the attorney's Wisconsin license for one year, not

the nine months to which Minnesota referred.                  No explanation

appears for the one-year suspension rather than nine months.

      ¶48    In sum, three cautions arise from the instant case and

my analysis of the 24 reciprocal discipline cases in the last

five years:

          (1) A stipulation is a stipulation is a stipulation.              If
             the court does not want to adhere to the stipulation,

             it    must   take    appropriate   steps    to     decline    the

             stipulation.         Although   this     court    just    cannot



      4
       Retroactive discipline in Wisconsin to run coterminous
with the suspension imposed by the other state was also raised
in In re Disciplinary Proceedings Against Nickitas, 2014 WI 12,
352 Wis. 2d 641, 843 N.W.2d 438.

     Retroactive imposition of discipline is an issue that comes
up frequently in various types of discipline cases.


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          unilaterally stretch the terms of the stipulation to

          make it suit the court's purposes, it has.

      (2) The   court    should       treat   similarly    situated         persons

          similarly.        On the basis of my five-year study, the

          case law in reciprocal discipline is not consistent.

    (3)   The     instant      case     and    the      numerous       reciprocal

          discipline cases I summarize above are illustrative of

          foreseeable       and   recurring       problems       in    reciprocal

          discipline.       I suggest that the OLR Procedure Review

          Committee (Professor Marsha Mansfield, University of

          Wisconsin     Law    School,      Reporter),    appointed         by   the

          court   in    June   2016,     review   and    revise       the   Supreme

          Court Rules imposing reciprocal identical discipline

          when a lawyer licensed in Wisconsin is disciplined in

          another state.

    ¶49   For the reasons set forth, I dissent from the per

curiam opinion imposing discipline beyond the 60-day suspension

to which Attorney Gillette and the OLR stipulated.




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