                                                              2014 WI 12

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP1770-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Peter James Nickitas, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Peter James Nickitas,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST NICKITAS

OPINION FILED:          March 14, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                    2014 WI 12
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2013AP1770-D


STATE OF WISCONSIN                        :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Peter James Nickitas, Attorney at Law:

Office of Lawyer Regulation,                                     FILED
              Complainant,
                                                            MAR 14, 2014
      v.
                                                               Diane M. Fremgen
                                                            Clerk of Supreme Court
Peter James Nickitas,

              Respondent.




      ATTORNEY       disciplinary   proceeding.     Attorney's          license

suspended.



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

has filed a complaint and motion pursuant to SCR 22.221 asking


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          SCR 22.22 provides:   Reciprocal discipline.

           (1) An attorney on whom public discipline for
      misconduct or a license suspension for medical
      incapacity has been imposed by another jurisdiction
      shall promptly notify the director of the matter.
      Failure to furnish the notice within 20 days of the
      effective date of the order or judgment of the other
      jurisdiction constitutes misconduct.
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     (2) Upon the receipt of a certified copy of a
judgment or order of another jurisdiction imposing
discipline for misconduct or a license suspension for
medical incapacity of an attorney admitted to the
practice of law or engaged in the practice of law in
this state, the director may file a complaint in the
supreme court containing all of the following:

     (a) A certified copy of the judgment or order
from the other jurisdiction.

     (b) A motion requesting an order directing the
attorney to inform the supreme court in writing within
20 days of any claim of the attorney predicated on the
grounds set forth in sub. (3) that the imposition of
the identical discipline or license suspension by the
supreme court would be unwarranted and the factual
basis for the claim.

     (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
conclusion in respect to the misconduct or medical
incapacity.

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

     (4) Except as provided in sub. (3), a final
adjudication in another jurisdiction that an attorney
has engaged in misconduct or has a medical incapacity
shall be conclusive evidence of the attorney's
misconduct or medical incapacity for purposes of a
proceeding under this rule.

     (5) The supreme court may refer a complaint
filed under sub. (2) to a referee for a hearing and a
report and recommendation pursuant to SCR 22.16.   At
the hearing, the burden is on the party seeking the
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this   court     to   impose    reciprocal         discipline            against    Attorney

Peter James Nickitas identical to the 30-day suspension imposed

by the Supreme Court of Minnesota.

       ¶2   On      September    16,    2013,          in    response      to     the     OLR's

motion, this court issued an order directing Attorney Nickitas

to   show   cause      in    writing    by       September         30,    2013,     why       the

imposition     of     discipline      reciprocal            to    that    imposed       by    the

Supreme     Court      of     Minnesota          would       be     unwarranted.              On

September 19, 2013, Attorney Nickitas filed a response attaching

a copy of a letter he had previously sent to the OLR.                               Attorney

Nickitas     does     not    object    to        the     imposition        of   reciprocal

discipline; however, he requests that the 30-day suspension be

applied retroactively so as to run coterminous with the term of

the Minnesota suspension.             On October 16, 2013, the OLR filed a

response opposing a retroactive suspension.                         Upon review of the

matter, we decline to make the 30-day suspension retroactive.

       ¶3   Attorney        Nickitas    was       admitted         to    practice       law    in

Wisconsin in 1991.            He is also admitted to practice law in




       imposition   of  discipline   or  license  suspension
       different from that imposed in the other jurisdiction
       to demonstrate that the imposition of identical
       discipline or license suspension by the supreme court
       is unwarranted.

            (6) If the discipline or license suspension
       imposed in the other jurisdiction has been stayed, any
       reciprocal discipline or license suspension imposed by
       the supreme court shall be held in abeyance until the
       stay expires.

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Minnesota.       His most recent address furnished to the State Bar

of Wisconsin is in Minneapolis, Minnesota.

     ¶4     Attorney        Nickitas'      professional          disciplinary            history

in Wisconsin consists of a 90-day suspension imposed in 2006,

reciprocal    to     a     similar      suspension         in   Minnesota.              Attorney

Nickitas' misconduct in that case involved a consensual sexual

relationship       with     a    client;       entering      into      multiple         business

transactions with a client without written disclosure of the

potential     conflicts           and     without         providing          for    fair       and

reasonable terms for his client; failing to timely appeal a

final     judgment       and     subsequently          filing        motions        previously

decided by the unappealed judgment; and failing to notify the

OLR of the Minnesota suspension.                    In re Disciplinary Proceedings

Against Nickitas, 2006 WI 20, 289 Wis. 2d 18, 710 N.W.2d 464.

     ¶5     On     May     7,     2013,    the        Supreme        Court     of    Minnesota

suspended Attorney Nickitas' Minnesota law license for 30 days

for undertaking representation despite a conflict of interest;

engaging in inappropriate conduct toward opposing counsel; and
bringing a claim in bad faith and for an improper purpose.                                     The

Supreme Court of Minnesota found that these actions violated

Rules 1.7(a)(2), 3.1, 4.4(a), and 8.4(d) of the Minnesota Rules

of      Professional        Conduct.                Attorney          Nickitas          admitted

substantially        all        allegations         and    agreed        that       a     30-day

suspension was appropriate.

     ¶6     Supreme Court Rule 22.22(3) provides that this court

"shall    impose     the    identical          discipline       or    license       suspension
unless . . . the         procedure        in    the    other     jurisdiction            was   so
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                                                                         No.     2013AP1770-D



lacking in notice or opportunity to be heard as to constitute a

deprivation of due process"; "there was such an infirmity of

proof establishing the misconduct . . . that the supreme court

could   not       accept      as    final    the   conclusion      in    respect      to    the

misconduct . . .";             or   "the     misconduct        justifies      substantially

different discipline in this state."

      ¶7      Attorney         Nickitas      has   not    alleged      that    any    of    the

three exceptions exist and, as noted, he does not oppose the

imposition of reciprocal discipline.                      His only argument is that

the 30-day suspension in Wisconsin should be made retroactive to

the   term       of    the    Minnesota      suspension.          In    support      of    this

argument Attorney Nickitas says that the United States District

Court      for     the       Western    District         of    Wisconsin       reciprocally

suspended        him    from    May    24,    2013   through      June     30,   2013,      and

reinstated him upon the conditional reinstatement by the Supreme

Court of Minnesota which occurred on June 20, 2013.                              He says at

the time of the Minnesota suspension he had one case pending in

Wisconsin circuit court and found substitute counsel to handle
that case for him during the term of the Minnesota and Western

District suspensions.               Attorney Nickitas argues that to suspend

him   once       again   in     Wisconsin,      after     he    had    already    served      a

suspension in the Western District and voluntarily withdrew from

all pending Wisconsin state cases for more than 30 days as if he

were suspended would be unfair and would also prejudice a client

he is currently representing in both a Wisconsin circuit court

and federal court.


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      ¶8     The   OLR    opposes     a   retroactive      suspension,    saying   a

lawyer's voluntary cessation of practice does not result in the

court backdating the suspension.                 See, e.g., In re Disciplinary

Proceedings Against Frank, 206 Wis. 2d 233, 241, 556 N.W.2d 717

(1996).      The OLR argues that in the event the suspension were

not   made    retroactive,      this      court    would    not   be    effectively

doubling the discipline since Attorney Nickitas had the ability

to continue to practice in Wisconsin during the term of his

Minnesota suspension.         The OLR says Attorney Nickitas' purported

voluntary cessation of practice in Wisconsin during the term of

the    Minnesota         suspension       does     not     warrant      retroactive

application of the suspension imposed by this court.                       We agree

with the OLR's reasoning.           Suspensions are generally not imposed

retroactively.          There are no special circumstances in this case

that would warrant a retroactive suspension.

      ¶9     IT IS ORDERED that the license of Peter James Nickitas

to practice law in Wisconsin is suspended for a period of 30

days, effective April 18, 2014.
      ¶10    IT IS FURTHER ORDERED that Peter James Nickitas 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.

      ¶11    IT    IS     FURTHER   ORDERED       that     compliance    with    all

conditions of this order is required for reinstatement.                          See

SCR 22.28(2).




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