                                                            2014 WI 103

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2012AP1965-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Joseph L. Sommers, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Joseph L. Sommers,
                                 Respondent.



                           DISCIPLINARY PROCEEDINGS AGAINST SOMERS

OPINION FILED:         AUGUST 5, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, C.J., dissents. (Opinion filed.)
                       CROOKS, J., dissents. (Opinion filed.)
  NOT PARTICIPATING:   ZIEGLER, GABLEMAN, JJ., did not participate.

ATTORNEYS:
                                                                    2014 WI 103
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.       2012AP1965-D


STATE OF WISCONSIN                         :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Joseph L. Sommers, Attorney at Law:

Office of Lawyer Regulation,                                      FILED
              Complainant,
                                                              AUG 5, 2014
      v.
                                                                Diane M. Fremgen
                                                             Clerk of Supreme Court
Joseph L. Sommers,

              Respondent.




      ATTORNEY      disciplinary     proceeding.       Attorney         publicly

reprimanded.



      ¶1      PER CURIAM.    We review, pursuant to SCR 22.17(2),1 the

report of Referee John B. Murphy recommending the court suspend


      1
          SCR 22.17(2) states:

           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.
                                                                               No.     2012AP1965-D



Attorney Joseph L. Sommers' license to practice law for a period

of 60 days for professional misconduct.                                This was a default

proceeding.       No appeal was filed.

      ¶2    We approve and adopt the referee's findings of fact

and   conclusions         of    law.          We       agree    that        Attorney       Sommers'

misconduct       warrants        public       discipline,             but     deem     a    public

reprimand     sufficient.               We    impose           the    full     costs       of     the

proceeding    on    Attorney        Sommers,            which       total    $5,033.16       as    of

August 8, 2013.2

      ¶3    Attorney           Sommers       was       admitted       to     practice       law    in

Wisconsin    in    1992.          His    Wisconsin            law    license     is     currently

suspended for nonpayment of State Bar dues and for noncompliance

with continuing legal education (CLE) requirements.                                        Attorney

Sommers was previously suspended for 30 days as discipline in a

matter that is intertwined with the allegations in the pending

complaint.       In re Disciplinary Proceedings Against Sommers, 2012

WI 33, 339 Wis. 2d 580, 811 N.W.2d 387.

      ¶4    In     2001    A.R.     was       charged,         and    later     acquitted         of,
homicide by negligent operation of a motor vehicle.                                     The case

was   initially     prosecuted           by   Assistant          District       Attorney          Paul

Humphrey.     Attorney Sommers defended A.R.                          Interactions between

the two lawyers were contentious.

      ¶5    In November 2006 the Office of Lawyer Regulation (OLR)

charged     both    Attorney        Sommers             and     Attorney       Humphrey         with


      2
       The OLR has also filed a statement                                      indicating          no
restitution is warranted in this matter.

                                                   2
                                                                 No.   2012AP1965-D



professional misconduct based on incidents that occurred during

the prosecution of A.R.

       ¶6     On   January   2,   2007,   Attorney     Sommers    announced    his

candidacy for the Wisconsin Supreme Court.                On January 4, 2007,

Attorney Sommers wrote a letter to the Chief Justice of the

Wisconsin Supreme Court.            He provided copies of this letter to

all of the Wisconsin Supreme Court justices and to the OLR.

Attorney Sommers did not provide a copy to counsel for Attorney

Humphrey.

       ¶7     In the January 4, 2007 letter Attorney Sommers advised

the court of his supreme court candidacy.               He also claimed that

Attorney      Humphrey    engaged   in    prosecutorial    misconduct     in   the

A.R.   case    and   in   several    other    cases.     His   allegations     far

exceeded the scope of the official court record in the then-

pending Humphrey disciplinary matter.             The letter was posted to

Attorney Sommers' web site, www.sommersforsupremecourt.com.

       ¶8     Counsel for Attorney Humphrey filed a grievance with

the OLR asserting, inter alia, that Attorney Sommers did not
contemporaneously provide a copy of this letter and accompanying

materials to him.

       ¶9     On February 5, 2007, Attorney Sommers issued a press

release entitled, "Corruption in Wisconsin Courts——Supreme Court

Candidate Speaks Out" (hereinafter "Press Release").                   The Press

Release describes Attorney Sommers' reasons for seeking election

to the court and purports to explain, as relevant here, "How

innocent defendants plead out every day in Wisconsin courts,"


                                          3
                                                                         No.     2012AP1965-D



and "[h]ow judges are permitted to get away with falsifying the

record."

      ¶10    Counsel for Attorney Humphrey filed another grievance

alleging     this    Press      Release     constituted             an   unsubstantiated

attack on the courts and judges of Wisconsin and was designed to

undermine public confidence in the judiciary in violation of the

Attorney's Oath.

      ¶11    Following       receipt      of      these       grievances,            the    OLR

directed     Attorney     Sommers      to       respond,       in    writing,         to    the

assertion that his letter and the Press Release violated rules

of   professional      conduct.        Attorney         Sommers      sent      his    written

response to the OLR's inquiry, a letter dated May 21, 2007,

directly to the supreme court, rather than to the OLR.

      ¶12    Counsel for Attorney Humphrey filed a third grievance

asserting that this letter was an improper attempt to influence

the supreme court and constituted an ex parte communication.

      ¶13    On January 9, 2008, the OLR provided Attorney Sommers

with a preliminary investigative report relating to the above-
mentioned grievances.            On January 24, 2008, Attorney Sommers

sent another letter to the chief justice, with copies to the

other justices and to various other individuals and entities in

addition to the OLR.

      ¶14    On    September     6,    2012,      the     OLR       filed      the    pending

disciplinary       complaint     alleging        that    the    three       letters        sent

January     4,    2007,   May   21,    2007,      and     January        24,    2008,      each

constitute an impermissible ex parte communication with a judge
or   other        official      in    violation          of     former         or     current
                                            4
                                                                  No.    2012AP1965-D



SCR 20:3.5(b)3 (Count One); that by publishing or allowing to be

published on his web page the January 4, 2007 letter to the

supreme court, Attorney Sommers made extrajudicial statements

that       he   knew   or   reasonably   should   have    known    would       have   a

substantial likelihood of materially prejudicing an adjudicative

proceeding in the matter, in violation of (former) SCR 20:3.6(a)4

       3
       Former SCR 20:3.5(b) (effective through June 30, 2007)
applied to the first two letters and stated:

            A lawyer shall not: . . . (b) communicate ex
       parte with such a person except as permitted by law or
       for scheduling purposes if permitted by the court. If
       communication between a lawyer and judge has occurred
       in order to schedule a matter, the lawyer involved
       shall promptly notify the lawyer for the other party
       or the other party, if unrepresented, of such
       communication; . . . .

     Current SCR 20:3.5(b) (effective                as    of     July    1,    2007)
applies to the third letter and states:

            A lawyer shall not: . . . (b) communicate ex
       parte with such a person during the proceeding unless
       authorized to do so by law or court order or for
       scheduling purposes if permitted by the court.     If
       communication between a lawyer and judge has occurred
       in order to schedule the matter, the lawyer involved
       shall promptly notify the lawyer for the other party
       or the other party, if unrepresented, of such
       communication; . . . .
       4
           Former 20:3.6(a) (effective through June 30, 2007) stated:

            A lawyer who is participating or has participated
       in the investigation or litigation of a matter shall
       not make an extrajudicial statement that a reasonable
       person would expect to be disseminated by means of
       public communication if the lawyer knows or reasonably
       should know that it will have a substantial likelihood
       of materially prejudicing an adjudicative proceeding
       in the matter.

                                          5
                                                                      No.    2012AP1965-D



(Count Two); and that by publishing the Press Release on an

Internet        web    site,    Attorney       Sommers     violated   the    Attorney's

Oath,     SCR    40.15,    by    failing       to   maintain    the   respect    due   to

courts of justice and judicial officers, made actionable via SCR

20:8.4(g)5 (Count Three). The OLR asked the court to suspend

Attorney Sommers' license for 60 days.

      ¶15       The     court        appointed        Referee     John      Murphy     on

November 19, 2012.             Attorney Sommers did not participate in the

proceeding and, on January 10, 2013, the OLR moved for a default

judgment.        After ordering a continuance to ensure that Attorney

Sommers was properly served, the referee found that Attorney

Sommers       had     failed    to    appear    and    that    default   judgment      was

appropriate.           Accordingly, the referee's findings of fact are

based on the allegations of the complaint filed by the OLR.

      ¶16       The referee requested the parties brief the issue of

discipline.           The OLR filed a brief reiterating its request for a

60-day     suspension          and    imposition      of   full   costs.        Attorney

Sommers did not respond.               On July 22, 2013, the referee filed a
report recommending a 60-day suspension.

      ¶17       Neither party appealed.             The court is now tasked with

considering whether the referee's factual findings are clearly

erroneous and considering, de novo, whether the conclusions of

law     are     correct.         In    re   Disciplinary        Proceedings      Against

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


      5
       SCR 20:8.4(g) states it is professional misconduct for a
lawyer to "violate the attorney's oath; . . . ."

                                               6
                                                                                   No.     2012AP1965-D



are    free    to        impose      whatever     discipline           we    deem        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.            In    light       of    Attorney          Sommers'

failure to appear or participate in this case, default judgment

is appropriate.               Neither party challenged the referee's findings

of    fact.         We     adopt      those    findings,            which    are    based       on    the

allegations in the OLR's complaint.

       ¶18     The complaint alleges that the three above-mentioned

letters       sent       by    Attorney       Sommers          to   the     supreme       court      were

impermissible ex parte communications in violation of current or

former SCR 20:3.6.

       ¶19     To     ensure         the     record       is    clear,      we     note     that      the

January       4,      2007          letter     was       not        filed    in     the        Humphrey

disciplinary case file.                    The letter was addressed to the chief

justice and did not include a case number.                                  The court construed

the letter as a complaint against the OLR filed pursuant to

SCR 22.25(8)6 because, in addition to the myriad of accusations
regarding Attorney Humphrey, Attorney Sommers asked the court to

investigate the OLR's handling of his own disciplinary case.                                          He


       6
           SCR 22.25(8) states:

            Allegations of malfeasance against the director,
       retained counsel, a member of a district committee, a
       member of the preliminary review committee, a member
       of the board of administrative oversight, a special
       investigator, a member of the special preliminary
       review panel, or a referee shall be referred by the
       director to the supreme court for appropriate action.

                                                     7
                                                                          No.     2012AP1965-D



asserted in the letter that the complaint filed against him was

"falsified," and that the OLR had failed to pursue allegations

he made concerning Attorney Humphrey's conduct.

       ¶20    Regardless         of    how   the     January       4,    2007    letter    was

construed for filing purposes, it contained sweeping accusations

regarding Attorney Humphrey.                    Attorney Sommers sent the letter

to   all     members      of    this    court       while    Humphrey's         disciplinary

proceeding was pending before this court.                          Attorney Sommers did

not provide counsel for Attorney Humphrey with a copy of the

letter.      The referee correctly concluded that this letter was an

impermissible        ex    parte        communication,            and    we     accept    that

conclusion.

       ¶21    Attorney         Sommers'      letter    dated       May    21,    2007,    also

contained statements concerning Attorney Humphrey and was sent

to   the     court   during       the    pendency      of    Humphrey's         disciplinary

proceeding.       Although several public officials are copied on the

letter, counsel for Attorney Humphrey is not.                             Again, we agree

with    the      referee's        conclusion          that     this      letter     was      an
impermissible ex parte communication.

       ¶22    Finally, we note that Attorney Sommers' January 24,

2008 letter indicates several individuals were "copied" on the

letter,      including     counsel        for    Attorney         Humphrey.       The     OLR's

complaint, however, avers that counsel did not contemporaneously

receive      a   copy     of     this     letter.           The     referee      deemed    the

allegations in the complaint as true and thus concluded that

this letter was another impermissible ex parte communication.
We accept that conclusion.
                                                8
                                                                No.   2012AP1965-D



    ¶23   We    next      consider      whether     Attorney     Sommers      made

extrajudicial statements that he knew or reasonably should have

known   would    have     a     substantial     likelihood      of    materially

prejudicing     an     adjudicative         proceeding     in    violation      of

SCR 20:3.6(a) when he published or allowed to be published his

January 4, 2007 letter on his webpage.             The rule then in effect,

SCR 20:3.6(a) provided:

         A lawyer who is participating or has participated
    in the investigation or litigation of a matter shall
    not make an extrajudicial statement that a reasonable
    person would expect to be disseminated by means of
    public communication if the lawyer knows or reasonably
    should know that it will have a substantial likelihood
    of materially prejudicing an adjudicative proceeding
    in the matter.
    ¶24   We    accept        the   referee's     uncontested     findings    and

conclusion    that   by   posting      the   January     2007   letter   on   his

website, Attorney Sommers violated the aforementioned rule.

    ¶25   The OLR alleges and the referee agreed that Attorney

Sommers violated the Attorney's Oath, SCR 40.15, made actionable

via SCR 20:8.4(g) when he posted a press release on a web site

established to promote Attorney Sommers' candidacy for judicial

office in which he sweepingly asserts, inter alia, that "judges

are permitted to get away with falsifying the record."

    ¶26   In State v. Eisenberg, 48 Wis. 2d 364, 180 N.W.2d 529

(1970), this court stated:

         License to practice law in this state is granted
    on implied understanding that an attorney shall at all
    times demean himself in proper manner and refrain from
    such practices which bring disrepute upon himself, the
    profession and the courts. This implied understanding


                                        9
                                                                       No.   2012AP1965-D


      is also affirmed by the oath taken by the attorney on
      admission to practice.
Id. at 380-81.        The Attorney's Oath states, in pertinent part:

           I will maintain the respect                     due    to    courts    of
      justice and judicial officers;

              . . . .

           I will abstain from all offensive personality and
      advance no fact prejudicial to the honor or reputation
      of a party or witness, unless required by the justice
      of the cause with which I am charged; . . . .
See SCR 40.15.
      ¶27     Thus,   a   lawyer      may   violate       the    Attorney's      Oath   by

conduct that occurs out of court as well as by in-court conduct.

See     In    re    Disciplinary        Proceedings         Against       Johann,       216

Wis. 2d 118, 574 N.W.2d 218 (1998) (disciplining attorney for

distributing a handout strongly critical of the man who was her

child's father and the man's wife).                   Often, alleged violations

of SCR 40.15 involve the "offensive personality" component of

the oath.      Here, the OLR alleges that Attorney Sommers failed to

abide    by   that    component       of    the   oath     that       requires   lawyers

maintain      the   respect     due   to    courts    of    justice       and    judicial
officers.

      ¶28     We must take care to limit the scope and application

of the Attorney's Oath so that it does not reach a substantial

amount of constitutionally protected conduct or significantly

inhibit an attorney's exercise of the right of free speech.                              We

are reluctant to deem that statements made during a judicial

election      violate     the   Attorney's        Oath.         The    Attorney's      Oath



                                            10
                                                                             No.     2012AP1965-D



should not be invoked to stifle legitimate critique of judicial

administration or process.

       ¶29    However,         Attorney     Sommers'          sweeping       assertion        that

"judges are permitted to get away with falsifying the record"

reflects outspoken contempt for the entire court system.                                  He has

declined      to     participate          in     this     proceeding.               The    facts

underlying         the    referee's        conclusion          that    Attorney           Sommers

violated      that       portion    of     the       Attorney's       Oath     requiring       an

attorney licensed by this court to maintain the respect due to

courts and judicial officers are a matter of record and are not

disputed.      We emphasize that this determination is made in the

context of a default proceeding and our holding is limited to

the facts of this case.              In sum, the referee's findings of fact

on this point have not been shown to be clearly erroneous, and

we adopt them as well as his conclusion of law.

       ¶30    The referee recommends a 60-day suspension.                                 As the

referee      observes,         improper    ex    parte        communications          typically

result in a range of sanctions from a private reprimand to a
one-year suspension.              See, e.g., In re Disciplinary Proceedings

Against      Ragatz,       146     Wis. 2d 80,          86,    429     N.W.2d 488          (1988)

(concluding that an attorney's written ex parte communications

with    a    judge       was     deemed    "an       advocacy        piece"        designed    to

influence      the       outcome      of       litigation        justifying          a    60-day

suspension).         Similarly, discipline for improper publicity has

resulted      in     discipline       ranging         from     private        reprimands        to

lengthy suspensions.               See, e.g., Private Reprimand No. 1994-17
(district attorney violated SCR 20:3.6 with statements to press
                                                11
                                                                      No.     2012AP1965-D



about     defendant);        In     re     Disciplinary     Proceedings             Against

Eisenberg, 144 Wis. 2d 284, 423 N.W.2d 867 (1988).                          Violation of

the Attorney's Oath also yields sanctions ranging from a private

reprimand to a six-month suspension.                    See, e.g., Johann, 216

Wis. 2d at 120-21, 128 (six-month suspension for attorney who

made inflammatory statements about her estranged husband during

a custody battle); In re Disciplinary Proceedings Against Blask,

216 Wis. 2d 129, 573 N.W.2d 835 (1998) (publicly reprimanding

lawyer     who    engaged      in    separate       physical     altercations         with

people).

    ¶31     Attorney Sommers has previously been disciplined in a

matter that included a violation of the Attorney's Oath.                             As an

experienced        lawyer,        Attorney       Sommers       should        know     that

contemporaneously        copying         opposing    counsel     on    correspondence

relating to the matters at issue is not a mere courtesy but an

ethical requirement.           Without excusing the misconduct, which is

serious, we are mindful that this proceeding stems from and is

intertwined       with   the      underlying     disciplinary         proceedings      and
prosecution of A.R., which elicited extraordinary and, we hope,

unusual     animosity       between        opposing     counsel.            On      careful

consideration, we deem a public reprimand sufficient to address

Attorney Sommers' misconduct in this matter.

    ¶32     No     objection        to   costs    was   filed.         We    accept     the

referee's        recommendation          that    Attorney      Sommers       should     be

required to pay the full costs of this proceeding which total

$5,033.16.


                                            12
                                                          No.    2012AP1965-D



    ¶33   IT   IS   ORDERED   that    Joseph    L.   Sommers    is   publicly

reprimanded for professional misconduct.

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

of this order, Joseph L. Sommers shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

    ¶35   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.

    ¶36   ANNETTE    KINGSLAND       ZIEGLER,    J.,    and     MICHAEL   J.

GABLEMAN, J., did not participate.




                                     13
                                                           No.   2012AP1965-D.ssa


       ¶37   SHIRLEY     S.    ABRAHAMSON,    C.J.      (dissenting).        The

allegations     in     the    pending    complaint   are   intertwined      with

matters for which Attorney Sommers and Attorney Humphrey have

each been suspended for 30 days.

       ¶38   I do not condone Attorney Sommers' conduct, but I do

grasp his distress about what he views as injustices to his

client and slip-ups in the disciplinary proceeding against him.

       ¶39   Attorney Sommers is presently not eligible to practice

law.    He has not paid State Bar dues; he has not complied with

continuing     legal     education      requirements.      Attorney     Sommers

advised the court in the previous disciplinary proceeding that a

suspension might mean that he could never practice law.

       ¶40   The court has discretion whether to impose discipline.

SCR 21.16.      I would not impose any discipline in the present

matter.




                                         1
                                                 No.    2012AP1965-D.npc


    ¶41   N. PATRICK CROOKS, J.      (dissenting).     I respectfully

dissent in regard to the discipline imposed.         Rather, I would

follow the recommendation of the Referee, John B. Murphy, and

impose a 60-day suspension and require the respondent to pay the

full costs of the proceedings.




                                 1
    No.   2012AP1965-D.npc




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