                                                              2016 WI 95

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP1958-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Margaret Bach, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Margaret Bach,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST BACH

OPINION FILED:          November 29, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                      2016 WI 95
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.    2015AP1958-D


STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Margaret Bach, Attorney at Law:


Office of Lawyer Regulation,                                       FILED
            Complainant,
                                                              NOV 29, 2016
      v.
                                                                 Diane M. Fremgen
                                                              Clerk of Supreme Court
Margaret Bach,

            Respondent.




      ATTORNEY    disciplinary       proceeding.        Attorney          publicly

reprimanded.



      ¶1    PER CURIAM.     We review the report of Referee James J.

Winiarski    recommending    that    the    court       publicly       reprimand

Attorney Margaret Bach for professional misconduct and order her

to pay the full costs of this disciplinary proceeding, which

total $14,765.09 as of August 26, 2016.

      ¶2    No appeal has been filed from the referee's report and
recommendation,   so   we   review   the   matter     pursuant       to   Supreme
                                                                       No.    2015AP1958-D



Court Rule (SCR) 22.17(2).1                    After considering the referee's

report    and     the    record       in     this   matter,     we    agree    with   the

referee's    determination            that    the   Office    of     Lawyer   Regulation

(OLR)    proved    by     clear,      satisfactory,     and     convincing      evidence

that Attorney Bach engaged in some, but not all, of the acts of

professional misconduct alleged in the OLR's amended complaint.

We agree that a public reprimand is appropriate and we require

Attorney Bach to pay the full costs of this proceeding.

    ¶3      This        court    is    familiar      with     the    underlying    facts

giving rise to this case.               It stems from Attorney Bach's efforts

to advocate on behalf of her adult son, A.B., who is disabled.

A.B. has a rare medical condition that renders him a danger to

himself and others.             Since approximately 2006, when A.B. turned

18, Attorney Bach has engaged in extensive litigation regarding

    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.

     The referee issued his report on August 8, 2016.        On
September 1, 2016, Attorney Bach filed a document entitled
"Reply Brief to Referee's Report." The rules governing the OLR
proceedings do not contemplate a "reply" to a referee's report.
However, there is no indication Attorney Bach intended this
document be construed as an appeal from the referee's report.
It is not captioned as an appeal, makes no reference to oral
argument or briefing, and would have been untimely.     See SCR
22.17(1).   We declined to construe it as an appeal.    We will
treat the document as a post-hearing brief.


                                               2
                                                                              No.     2015AP1958-D



his placement, level and quality of care, payment for that care,

and guardianship.

      ¶4    Initially,        Attorney          Bach       was     appointed          her      son's

guardian and cared for him at her home.                                 However, in 2009,

following    a    series      of    incidents             and    acrimonious          litigation

relating    to     A.B.'s        level     of       care,       the     court       appointed       a

corporate guardian for him.                In 2011, the court appointed a new

guardian, ARC of Greater Milwaukee, n/k/a Life Navigators, and

appointed Elizabeth Ruthmansdorfer as A.B.'s guardian ad litem.

Attorney    Bach      was    aggrieved          by    these       appointments           and      has

challenged them repeatedly in court.

      ¶5    On     July     5,     2011,        Attorney         Bach    was        admitted       to

practice law in Wisconsin. She continued to litigate but, as a

licensed attorney, she is subject to the Rules of Professional

Conduct for Attorneys, SCR Ch. 20.

      ¶6    On August 31, 2011, Attorney Bach filed a complaint in

federal     court     against       Milwaukee             County      and      several        other

defendants, naming herself and her son as plaintiffs.                                     Bach v.
Milwaukee County,           E.D. Wis. Case No. 11-C-828.                            The federal

court    dismissed     Attorney          Bach's      complaint          and     Attorney          Bach

appealed.        On   July    24,     2012,         the     Seventh      Circuit         Court     of

Appeals    dismissed        Attorney       Bach's         appeal.       Bach     v.      Milwaukee

County, 490 Fed. Appx. 806 (7th Cir. 2012), cert. denied (Feb.

19,     2013).        The     Court       held        that       "Life        Navigators          and

Ruthmansdorfer        are    the     only       persons          authorized         to      act    on

[A.B.'s] behalf." (Emphasis added.)


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                                                                            No.    2015AP1958-D



       ¶7     Meanwhile,      on    June     21,   2012,        the    Milwaukee          County

circuit      court    judge     presiding        over    A.B.'s       guardianship          case

denied       Attorney    Bach's      request       to     access       the        confidential

guardianship court file.              On July 11, 2012, the court issued a

written order confirming this ruling.

       ¶8     On October 16, 2012, the circuit court issued another

written order, this time enjoining Attorney Bach:

       ... from filing, without this Court's prior approval,
       either on her own behalf and/or on [A.B.'s] behalf
       and/or on behalf of any other person purporting to
       represent [A.B.'s] interests, any complaint, petition,
       motion, or other request for relief (hereinafter
       'pleading') in this guardianship proceeding, or in any
       other proceeding before any other state or federal
       court or other tribunal (including appellate courts),
       regarding [A.B.] and/or regarding any person or entity
       providing care or services to [A.B.] and/or any person
       or entity who serves as a legal representative to
       [A.B.], except that Ms. Bach may appeal this Order to
       the Wisconsin Court of Appeals.
       ¶9     On     April    2,     2013,       Attorney       Bach        filed     another

complaint      in    federal       court    challenging         the     circuit       court's

injunction as well as A.B.'s placement and visitation.                               Attorney
Bach did not name A.B. as a plaintiff, but requested the court

appoint a guardian ad litem for him.                      Bach v. Milwaukee County

Circuit Court, E.D. Wis. Case No. 13-CV-370.                           On May 31, 2013,

Attorney Bach amended her complaint, naming A.B. as a plaintiff.

       ¶10    In June 2013, in state court, Attorney Bach ordered

transcripts of certain proceedings in A.B.'s guardianship case

from   court       reporters.        Later    that       month,       the    circuit       court

informed      Attorney       Bach    that    the        court     reporters         had     been



                                             4
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instructed to cease their work, based on the 2012 June and July

court orders.

    ¶11     In a June 2013 order, the Wisconsin Court of Appeals

warned    Attorney    Bach       that   "[b]eing    [A.B.'s]       mother       does    not

endow her with the right to sidestep, manipulate or disregard

the rules by which all litigants must play."                           Margaret B. v.

County of Milwaukee, No. 2012AP1176, unpublished slip op., ¶7

(Wis. Ct. App. Jun. 12, 2013).

    ¶12     On July 31, 2013, Attorney Bach appealed the circuit

court's    ruling         regarding     transcripts        in     the        guardianship

proceeding.    The court of appeals summarily affirmed, stating:

    Proceedings in guardianship cases are confidential by
    statute,   and  this  court   has  previously  upheld
    determinations that, because she is not her son's
    guardian, guardian ad litem, or adversary counsel,
    Bach has no standing in the guardianship case, no
    right to review his confidential legal or medical
    records, and no right to assert any legal claims on
    his behalf.
Bach v. Life Navigators, No. 2013AP1758, unpublished order (Wis.

Ct. App. Dec. 30, 2014).

    ¶13     On September 11, 2013, Magistrate Judge Nancy Joseph

dismissed Attorney Bach's federal complaint regarding the state

court injunction, and A.B.'s placement and guardianship, warning

Attorney    Bach     of    the    court's      authority     to       enter     an    order

limiting    vexatious        litigants'        access   to      the     court        system.

Attorney Bach appealed.

    ¶14     On April 5, 2014, Attorney Bach appealed another order
in A.B.'s guardianship case.               The court of appeals denied her


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                                                                  No.     2015AP1958-D



petition for a fee waiver on the grounds that Attorney Bach had

failed to present any arguably meritorious issues for review.

Bach v. Life Navigators, No. 2014AP1007, unpublished slip op.,

(Wis. Ct. App. Sep. 22, 2014).

    ¶15       On May 22, 2014, the Seventh Circuit Court of Appeals

affirmed Judge Joseph's decision, ruling that Attorney Bach had

"abused the judicial process by filing multiple frivolous suits,

many of which, like this one, could not succeed unless the court

were prepared to ignore the outcome of her earlier suits."                         The

court also noted that Attorney Bach frequently named judges and

courts   as    defendants,      despite      their    absolute   immunity.        The

court ordered Attorney Bach to show cause within 14 days why the

court should not impose sanctions for a frivolous appeal.

    ¶16       On June 12, 2014, the Seventh Circuit Court of Appeals

deemed Attorney Bach's appeal frivolous and fined her $2,000.

    ¶17       On   October    28,    2014,    Attorney   Bach    petitioned       this

court for a writ of mandamus in A.B.'s guardianship case.                         This

court denied her petition, ex parte.                 Bach v. Circuit Court for
Milwaukee County, No. 2014AP2537, unpublished order (S. Ct. Jan.

12, 2015).

                                    OLR Complaint

    ¶18       In   September     2015,       the   OLR   filed    a     disciplinary

complaint      against       Attorney     Bach,      alleging    six     counts    of

professional misconduct all related to litigation she conducted

relating to A.B.         The OLR amended its complaint in March 2016,

this time, alleging five counts of misconduct.                   The OLR sought a
public reprimand and imposition of costs.
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                                                                         No.       2015AP1958-D



       ¶19       The court appointed Referee James J. Winiarski and,

following        briefing,       Attorney       Bach's    submission          of    extensive

documentation, and the referee's denial of Bach's request for

additional        time   to    conduct      additional         discovery,      the    referee

conducted an evidentiary hearing on May 9, 2016.                               The referee

rendered his report and recommendation on August 8, 2016.

       ¶20       Supreme Court Rule 22.17(1) provides that within 20

days after the filing of the referee's report, the director or

the respondent may file with the supreme court an appeal from

the referee's report.               As noted, Attorney Bach filed a "reply

brief" but neither party filed a timely appeal.                          Accordingly, we

review this matter pursuant to SCR 22.17(2).

       ¶21       We will affirm a referee's findings of fact unless

they       are   found   to    be    clearly        erroneous,     but    we       review   the

referee's        conclusions        of    law   on    a   de    novo     basis.        In    re

Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305

Wis. 2d 71, 740 N.W.2d 125.                 We determine the appropriate level

of     discipline        given      the    particular          facts     of    each     case,
independent        of    the   referee's        recommendation,          but   benefitting

from it.         In re Disciplinary Proceedings Against Widule, 2003 WI

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

       ¶22       The referee made detailed factual findings.                         There is

no persuasive showing that any of the referee's findings of fact

are erroneous.2          Accordingly, we adopt them.

       2
       We are unpersuaded by the arguments in Attorney Bach's
September 1, 2016, "reply brief."


                                                7
                                                                                    No.        2015AP1958-D



       ¶23    The     amended      complaint            alleged             that        Attorney       Bach

committed      five     counts        of    professional                    misconduct,          alleging

violations of SCRs 20:3.1 and 20:3.4.                             Supreme Court Rule 20:3.1

is entitled "meritorious claims and contentions."                                        Supreme Court

Rule    20:3.1(a)(1)         provides       that       in        representing             a    client,    a

lawyer shall not knowingly advance a claim or defense that is

unwarranted        under     existing       law,        except          that       the        lawyer   may

advance such claim or defense if it can be supported by good

faith argument for an extension, modification or reversal of

existing law.         Supreme Court Rule 20:3.1(a)(2) provides that a

lawyer shall not knowingly advance a factual position unless

there    is    a    basis    for   doing          so    that           is    not    frivolous.            A

Committee Comment published with the rule notes that Wisconsin

Supreme Court Rules 20:3.1(a)(1) and (2) differ from the ABA

Model Rules in expressly establishing a subjective test for an

ethical      violation.         See    also       In        re    Disciplinary                Proceedings

Against       Osicka,       2009      WI     38,        ¶42,           317        Wis. 2d 135,          765

N.W.2d 775.         Supreme Court Rule 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.

                             Counts One, Two, and Three

       ¶24    To     demonstrate           that        Attorney             Bach     committed          the

misconduct         alleged    in      counts          one        and        two    of     the     amended

complaint, the OLR was required to show that Attorney Bach "in

fact, knew the claim or factual position [s]he was advancing was
unwarranted."         See also In re Disciplinary Proceedings Against
                                                  8
                                                                           No.        2015AP1958-D



Katerinos,      2010        WI     28,   324     Wis. 2d 12,         782    N.W.2d 398.          A

lawyer's knowledge can be inferred under certain circumstances.

See SCR 20:1.0(g).3

       ¶25    In Count one of the amended complaint, the OLR alleged

that "[b]y continuing to make filings in state and federal court

stating claims that had already been ruled to be without merit

and from which she had been enjoined, Attorney Bach knowingly

advanced unwarranted claims."                  Similarly, in Count two, the OLR

alleged      that   "[b]y         continuing       to   make    filings         in    state    and

federal court, including an appeal to the Seventh Circuit Court

of    Appeals   that        was    described       by    the    court      as    "frivolous,"

Attorney Bach knowingly advanced frivolous factual positions."

       ¶26    The     OLR        contends   that        "Attorney       Bach         was    warned

several times by judges that her claims were not warranted yet

she    proceeded      with        federal   lawsuits,          as   well    as       with    state

actions in defiance of an injunction.                          She knew the claims she

was advancing were unwarranted . . .                     [and her] knowledge can be

inferred from the circumstances, SCR 20:1.0(g)."                            See OLR's Pre-
Hearing Brief, pp. 10-11, (2016).

       ¶27    Count    three        of   the   amended         complaint        alleged       that

Attorney Bach violated SCR 20:3.1(a)(3), which provides that a

lawyer     shall    not     file     a   suit,      assert      a   position,         conduct    a

defense, delay a trial or take other action on behalf of the


       3
       SCR 20:1.0(g) provides: "Knowingly," "known," or "knows"
denotes actual knowledge of the fact in question. A person's
knowledge may be inferred from circumstances.


                                               9
                                                                           No.     2015AP1958-D



client when the lawyer knows or when it is obvious that such an

action    would      serve   merely        to        harass    or    maliciously        injure

another.        Violations          of   SCR    20:3.1(a)(3)         are    subject       to    an

objective standard.

       ¶28   The     referee        expressed         frustration         with    the     OLR's

amended complaint, noting that "OLR wants me to 'infer' Attorney

Bach's    knowledge       (of       frivolousness,            unwarranted        claims,       and

intent to harass adverse parties)."                       However, while the OLR's

pre-hearing      brief    argues         that    "she    knew       the    claims    she       was

advancing were unwarranted" there is no such factual allegation

in the amended complaint.                  Merely alleging that Attorney Bach

filed the various actions is not sufficient.                           The OLR failed to

allege further that she, subjectively, knew that these actions

were    filed   in    a   frivolous        manner,       were       without      merit,    that

Attorney Bach was trying to advance an unwarranted claim, or

that she sought to harass or maliciously injure another.                                       The

referee states: "The amended complaint refers to many cases and

appeals and it is not my job to guess at what particular conduct
OLR    claims   violates        a    particular        Supreme       Court    rule."           The

referee continued:

       By alleging multiple fact situations that occurred in both
       state and federal courts and then alleging such collective
       conduct violated three separate Supreme Court rules (Counts
       1-3), some subject to an objective standard and others a
       subjective standard, I am at a loss to determine what
       precise alleged misconduct OLR claims violated which rules.
       I cannot apply an objective or subjective test without
       knowing the precise conduct OLR alleges violated which
       particular Supreme Court rule.



                                                10
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      ¶29   Moreover, the referee did not agree with the OLR's

assessment of Attorney Bach's intent.                      The referee characterized

Attorney    Bach       as    a    new   and     very    inexperienced       lawyer      with

overzealous goals, who plunged herself, unprepared, into filing

federal court actions and subsequent appeals.                        Her filings were

not competent; indeed they are often frustratingly inept, but

the referee correctly notes that the OLR did not allege that she

violated ethical rules requiring competence.                        However misguided

her filings were, the referee concluded that the evidence did

not   support     a    finding      that      Attorney     Bach    filed    the   various

actions with the intent of being frivolous or to harass the

defendants.        Accordingly, the referee concluded that the OLR

failed to prove by clear, satisfactory, and convincing evidence

that Attorney Bach committed the misconduct alleged in counts

one through three.

      ¶30   We accept the referee's analysis and we dismiss counts

one, two, and three of the OLR's amended complaint.

                                  Counts Four and Five
      ¶31    In       Count      four   of    the      amended    complaint,      the    OLR

alleged that by continuing to file lawsuits relating to her son

and   continuing        to       communicate        with   her    son's     health      care

providers   in        contravention        of    the    injunction    issued      by    the

Milwaukee County Circuit Court on October 16, 2012, Attorney




                                              11
                                                                  No.    2015AP1958-D



Bach knowingly disobeyed a court order, violating SCR 20:3.4(c).4

In Count five, the OLR alleged that by ordering confidential

transcripts of guardianship court hearings in contravention of a

Milwaukee County Circuit Court order, Attorney Bach knowingly

disobeyed a court order, violating SCR 20:3.4(c).

      ¶32   The   referee       agreed    that     Attorney       Bach    knowingly

disobeyed a court order in violation of SCR 20:3.4(c).                            The

record evidence supports the referee's findings.

      ¶33     Indeed,    Attorney    Bach     acknowledged        at    the    hearing

that she intentionally violated the injunction. She testified

that she followed her parents' vehicle when she knew they were

going to see her son, and, upon discovering her son's location,

she   had   further     contact    with   her     son    and     his    health    care

providers in violation of the injunction.                      Similarly, despite

circuit     court's     orders     denying      her     access     to    her     son's

confidential court files, Attorney Bach ordered transcripts of

certain proceedings without prior court approval.                        The record

supports the referee's finding, that after the injunction and
without prior court approval, Attorney Bach communicated with

her   son's   health     care     providers      and    aides;    surreptitiously

followed her parents' vehicle to determine her son's location;

visited her son in an unauthorized manner; communicated with her

son's attendants and aides; had unauthorized visitation with her

      4
       SCR 20:3.4(c) provides:  "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."


                                         12
                                                                     No.     2015AP1958-D



son, and filed documents in court, all in violation of a court

order.         We accept the referee's conclusion that Attorney Bach

knowingly disobeyed a court order in violation of SCR 20:3.4(c),

as alleged in counts four and five of the amended complaint.

       ¶34      We     next    consider    the     appropriate       discipline          for

Attorney       Bach's       misconduct.     The    referee      properly     considered

relevant       factors,       including,   (1)     the   seriousness,       nature       and

extent of the misconduct; (2) the level of discipline needed to

protect        the    public,    the    courts     and    the   legal      system      from

repetition of the attorney's misconduct; (3) the need to impress

upon the attorney the seriousness of the misconduct; and (4) the

need      to     deter        other    attorneys      from      committing        similar

misconduct, In re Disciplinary Proceedings Against Hammis, 2011

WI   3,   ¶39,        331   Wis. 2d 19,    793    N.W.2d 884;       see    also     In    re

Disciplinary Proceedings Against Grogan, 2011 WI 7, ¶15, 331

Wis. 2d 341, 795 N.W.2d 745 (recognizing the ABA Standards as a

guidepost).

       ¶35      The    referee    remained       mindful     that   Attorney        Bach's
misconduct all relates to her efforts on behalf of her child.

Indeed,        the    referee    deemed    Attorney      Bach's     "actions      as     the

biological and loving mother" a mitigating factor in assessing

appropriate discipline.

       ¶36      The referee did not condone Attorney Bach's conduct.

Nor do we.           Attorney Bach's deliberate violation of court orders

is     serious        professional     misconduct        that   requires      a     public

reprimand.           Indeed, we take this opportunity to caution Attorney
Bach.     Although, we affirm the referee's conclusion that the OLR
                                            13
                                                                           No.   2015AP1958-D



failed to prove she violated SCR 20:3.1(a)(1), (2), and (3) as

alleged in counts one, two, and three of the amended complaint,

this conclusion reflects a failure in the pleadings, rather than

an    exoneration       of    her    conduct.        We    are   very       familiar       with

Attorney Bach's filings.                 We recognize that her fervent advocacy

stems from concern for her child.                         However, we must caution

Attorney Bach that this court's tolerance for her persistent

refusal      to    respect     and       follow    rules    of   court       procedure      is

wearing thin.

       ¶37    The referee explicitly recommends that we impose all

of the costs of this disciplinary proceeding, noting that the

"counts for which I have recommended dismissal do not justify

reduction         in   her    responsibility        for      full     costs."         In     re

Disciplinary Proceedings Against Polich, 2005 WI 36, ¶¶29-30,

279    Wis. 2d 266,          694    N.W.2d 367      (holding        that     even    when    a

respondent        prevails     on    a    number    of    counts,     it    is   still     the

court's      policy     to    assess       full    costs).       We    agree        with   the

referee: nothing about this case warrants deviating from our
general policy of imposing all costs upon the respondent.                                   See

SCR 22.12.         Attorney Bach is ordered to pay the full costs of

the proceeding.

       ¶38    Consistent with the referee's recommendation and as is

standard procedure, Attorney Bach may contact the OLR to request

a payment plan that will enable Attorney Bach to pay the costs

of this proceeding in a manner consistent with her financial

ability.      We accept the OLR's statement that restitution is not
warranted in this matter.
                                             14
                                                  No.     2015AP1958-D



    ¶39   IT IS ORDERED that counts one, two, and three of the

amended complaint are dismissed.

    ¶40   IT IS FURTHER ORDERED that Margaret Bach is publicly

reprimanded for her professional misconduct.

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

of this order, Margaret Bach shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $14,765.09.

    ¶42   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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