                                                                            2013 WI 37

                  SUPREME COURT                  OF    WISCONSIN
CASE NO.:                2009AP284-D
COMPLETE TITLE:
                         In the Matter of Disciplinary Proceedings
                         Against Alan D. Eisenberg, Attorney at Law:

                         Office of Lawyer Regulation,
                                   Complainant-Respondent,
                              v.
                         Alan D. Eisenberg,
                                   Respondent-Appellant.
                            DISCIPLINARY PROCEEDINGS AGAINST EISENBERG

OPINION FILED:           May 2, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           November 6, 2012

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the respondent-appellant, there was a brief filed by
Alan    D.    Eisenberg,        pro    se,     and   oral   argument   by    Alan   D.
Eisenberg.
       For    the      Office   of    Lawyer    Regulation,   there    was    a brief
filed by Paul W. Schwarzenbart and oral argument by Paul W.
Schwarzenbart.
                                                                      2013 WI 37
                                                               NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.   2009AP284-D


STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
against Alan D. Eisenberg, Attorney at Law:

Office of Lawyer Regulation,                                       FILED
             Complainant-Respondent,
                                                               MAY 2, 2013
      v.
                                                                 Diane M. Fremgen
                                                              Clerk of Supreme Court
Alan D. Eisenberg,

             Respondent-Appellant.




      ATTORNEY     disciplinary      proceeding.       Attorney's         license

suspended.


      ¶1   PER     CURIAM.   This      is   the        sixth       disciplinary

proceeding involving Attorney Alan D. Eisenberg.               In this matter
Attorney Eisenberg has appealed from the report of the referee,

Attorney John R. Decker, in which the referee recommended that
the period of ineligibility for Attorney Eisenberg to petition

for reinstatement from the prior revocation of his license to
practice law be extended for a period of two years, and that

Attorney Eisenberg be ordered to pay the full costs of this
                                                                                    No.    2009AP284-D



disciplinary             proceeding,             which      were        $27,689.29           as      of

November 19, 2012.

       ¶2     After fully reviewing this matter, we reject Attorney

Eisenberg's         arguments          on    appeal.         We    accept           the     referee's

findings      of    fact     and       agree      that     those       facts    provide          clear,

satisfactory, and convincing                      evidence       that       Attorney        Eisenberg

committed five violations of the Rules of Professional Conduct

for Attorneys.             We further agree with the referee that those

violations         require       the     imposition         of    an    additional           two-year

suspension, which shall run consecutive to the existing five-

year    period      in     which        Attorney         Eisenberg      is     prohibited          from

petitioning for the reinstatement of his license to practice law

in Wisconsin due to the prior revocation of his license.                                             We

also determine that Attorney Eisenberg should be required to pay

the full costs of this proceeding.

       ¶3     Attorney Eisenberg was admitted to the practice of law

in this state in 1966.                  He has been the subject of professional

discipline         on     five    prior          occasions.            In    1970         this    court
suspended Attorney Eisenberg's license for a period of one year

due     to    his        unprofessional            conduct.            In      re     Disciplinary

Proceedings        Against Eisenberg,               48     Wis. 2d 364,         180        N.W.2d 529

(1970) (Eisenberg I).                  In 1988 we imposed a two-year suspension

for a lengthy list of ethical violations, including multiple

false       statements.            In       re    Disciplinary          Proceedings              Against

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

II).    In 1996 Attorney Eisenberg received a public reprimand for

failing to close out a client trust account and thereby to wrap
                                                   2
                                                                        No.       2009AP284-D



up his law practice during the suspension imposed in Eisenberg

II.          Public    Reprimand      of     Alan      D.     Eisenberg,      No.     1996-3

(Eisenberg        III).         In    2004       we     again     suspended         Attorney

Eisenberg's license for a period of one year for misconduct that

included, among other things, directing his staff to fabricate

billing records, which he then incorporated into an affidavit

that he personally signed, disrupting an administrative hearing

with "rude, abusive, controlling, [and] disrespectful" behavior,

and entering into a prohibited transaction with a client.                             In re
Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶¶19 and

24-25, 269 Wis. 2d 43, 675 N.W.2d 747 (Eisenberg IV).                               Finally,

in 2010 we revoked Attorney Eisenberg's license for misconduct

in filing and maintaining a frivolous lawsuit that served merely

to    harass    or     maliciously     injure       the     opposing    party.        In   re

Disciplinary          Proceedings     Against         Eisenberg,    2010     WI     11,    322

Wis. 2d 518, 778 N.W.2d 645 (Eisenberg V).                         Under this court's

rules, Attorney Eisenberg will not be eligible to petition for

the    reinstatement       of   his    license        until     April   1,    2015.        See

SCR 22.29(2) ("A petition for reinstatement of a license that is

revoked may be filed at any time commencing five years after the

effective date of revocation.").

        ¶4     The OLR filed its complaint in this matter in February

2009.        The proceedings before the referee did not move forward

for a period of time given the pendency of the disciplinary

proceeding that resulted in the Eisenberg V decision.                               Attorney

Eisenberg subsequently filed two motions to dismiss this matter,

but both were denied by the referee.                      He also filed a motion in
                                             3
                                                                               No.    2009AP284-D



this court requesting that Referee Decker be disqualified and

that a new referee be appointed to decide the disqualification

issue.       This court denied his request for the appointment of a

different          referee      to    decide    the       disqualification           motion    and

referred the recusal/disqualification motion to Referee Decker

for a decision.                The referee subsequently denied that motion.

After    the       passage      of    a   considerable        amount      of    time    between

sessions       of    an       evidentiary      hearing,       the    referee         issued   his

report       and    recommendation.            Attorney       Eisenberg        appealed,       and

oral argument on his appeal was conducted in November 2012.

        ¶5     The OLR's complaint in this proceeding relates to two

separate       representations.               The    referee      ultimately          found    the

following facts regarding the underlying matters.

        ¶6     In the first matter, Attorney Eisenberg represented a

man, T.H., regarding the euthanization of a pet dog.                                   Prior to

undertaking           this       representation,             Attorney      Eisenberg           had

previously represented a plaintiff dog owner in a civil action

against a neighbor, an off-duty police officer who had shot the
plaintiff's dog.              Attorney Eisenberg had argued on behalf of the

plaintiff in that case that the plaintiff dog owner had a legal
claim    for       negligent         infliction      of    emotional      distress.           This

court ultimately ruled in that case that the plaintiff could not
state a claim for negligent infliction of emotional distress

because       such        a    claim        requires       that     the    person       seeking
compensation must have witnessed the death of a close relative,

and under the law of this state a pet dog is considered the

personal       property         of    the    owner     and    not    a    close       relative.
                                                 4
                                                                               No.     2009AP284-D



Rabideau v. City of Racine, 2001 WI 57, 243 Wis. 2d 486, 627

N.W.2d 795.             From    his     work    on       the     Rabideau     case,        Attorney

Eisenberg was aware of the legal categorization of pet dogs as

personal property.

        ¶7     T.H. had formerly been married to S.H., and they had

owned a Labrador retriever during their marriage.                                     After T.H.

moved        out   of    the        family     residence         and   while        the    divorce

proceeding         was       pending,    the    dog        resided     with    S.H.        and   the

couple's son, but not with T.H.                          S.H. and T.H. entered into a

marital        settlement           agreement           (MSA),    which       was     ultimately

incorporated into the judgment of divorce.                                In the MSA, T.H.

expressly agreed that S.H. would be awarded, inter alia, all
"personal belongings and other personal property currently in

her possession at the time of the final hearing," and that T.H.

was   divested          of    any    right     or       legal    interest     in     any    of   the

property awarded to S.H.                 This MSA was never modified.                      The dog

was therefore awarded to S.H. in the divorce judgment.

      ¶8       S.H. had the dog euthanized at a veterinary hospital

in August 2000.               T.H. learned of this fact a short time later.

He then retained Attorney Eisenberg regarding a potential claim.

      ¶9       Despite his knowledge of the legal characterization of

pet animals as personal property and of the terms of the MSA and

the divorce judgment, which awarded all personal property in her

possession to S.H., Attorney Eisenberg filed a large-claim civil

action on T.H.'s behalf on the theory that T.H. was the lawful

owner of the dog.               Although the referee found that the initial

belief in Attorney Eisenberg's office was that S.H. had been
                                                    5
                                                                              No.        2009AP284-D



responsible, with or without her mother's assistance, for the

euthanization of the dog, Attorney Eisenberg did not name S.H.

as    a       defendant.           Apparently        for     strategic    reasons         Attorney

Eisenberg named B.S., who was S.H.'s mother and T.H.'s former

mother-in-law, as the sole defendant.1

          ¶10    Attorney          Eisenberg         subsequently       claimed         that     the

veterinary hospital had told him that it had been B.S. who (1)

had brought the dog to the hospital, (2) had falsely claimed

that she was the owner, and (3) had demanded that the dog be

euthanized.            The referee found that this claim was "incredible

and   false."               Attorney     Eisenberg         also   claimed     that       S.H.    had

admitted         to    him    in    a    later       telephone       conversation        that    her

mother had been the individual responsible for the euthanization

of the dog.            The referee also found this to be a "fabrication"

by Attorney Eisenberg.

          ¶11    In April 2001            counsel         for   B.S.   sought      to    take    the

deposition of T.H., but was unable to do so because T.H. refused

to answer counsel's questions and Attorney Eisenberg refused to
instruct T.H. to answer.                      B.S.'s counsel attempted to resolve

the       discovery          dispute     in      a       telephone     call   with        Attorney
Eisenberg,            but     Attorney        Eisenberg         continued     to        refuse   to

instruct         his    client      to    answer.           Instead,    Attorney         Eisenberg


          1
       The referee described his view of the way in which the
lawsuit was structured as follows:         "[Attorney] Eisenberg
constructed a compelling narrative for the case:        vicious,
vindictive ex-mother-in-law has the perfectly healthy dog
belonging to her ex-son-in-law euthanized.      The only problem
with the narrative was that it was untrue."

                                                     6
                                                                   No.     2009AP284-D



questioned opposing counsel about the facts of the case and then

hung up after calling opposing counsel a liar.

       ¶12    B.S. was forced to bring a motion to compel discovery.

Attorney Eisenberg did not appear for the hearing on the motion.

Instead,      25    minutes    after   the     scheduled   start    time    for    the

hearing, Attorney Eisenberg called an associate attorney in his

firm who had graduated from law school just one month earlier

and instructed her to appear in his stead.                    Consequently, the

court and opposing counsel were forced to wait 35 minutes before

the associate reached the courtroom.                The circuit court granted

the motion to compel and ordered that Attorney Eisenberg pay the

opposing side's costs and attorney fees, including the fees for

the   35     minutes   spent    waiting      for   Attorney   Eisenberg      or    his

associate to appear.

       ¶13    When the deposition of T.H. resumed, B.S.'s counsel

presented T.H. with documentation from the veterinary hospital

which showed that S.H., not his former mother-in-law, had signed

the consent form for the dog to be euthanized.                     T.H. indicated
that he had never seen the form before and acknowledged that it

made "everything irrelevant."                T.H. also acknowledged that the
dog had bitten people in a few incidents over the years and that

he    had    been   convicted    on    a   municipal   charge      of    cruelty    to
animals for an incident involving the dog.

       ¶14    The circuit court        ultimately      granted     B.S.'s    summary
judgment motion and dismissed the case.                Finding that both T.H.

and Attorney Eisenberg had no basis in law or fact to assert

that T.H. had any ownership interest in the dog at the time it
                                           7
                                                            No.    2009AP284-D



had   been    euthanized,   the   circuit   court   also   ruled    that   the

action had been frivolous and ordered Attorney Eisenberg and

T.H. to pay B.S. the sum of $3,680.70, plus costs.                Ultimately,

in September 2001 this sanction order was reduced to a judgment

in the amount of $3,785.70 against Attorney Eisenberg and T.H.,

jointly and severally.

      ¶15    Attorney Eisenberg did not make any payments toward

the judgment for a number of years.          He initially filed a motion

for reconsideration, which was denied.         He then filed an appeal,

which was dismissed as untimely.            Almost five years after the

judgment had been entered, Attorney Eisenberg filed a motion to

vacate and dismiss the judgment because he wanted "to do certain

things financially" and "to move on with certain things in his

life."       That motion was denied, and the denial was upheld on

appeal.      Finally, in January 2008, more than six years after the

entry of the sanction order and judgment, Attorney Eisenberg

tendered a check to B.S. in satisfaction of the judgment.

      ¶16    On the basis of these facts, the referee concluded
that by alleging that T.H. was the "owner" of the dog when T.H.

had agreed to relinquish any claim to ownership in the MSA and
the divorce judgment, Attorney Eisenberg knowingly advanced a

factual position where the basis for doing so was frivolous, in
violation of SCR 20:3.1(a)(2).2          Second, the referee determined



      2
       SCR 20:3.1(a)(2) states that in representing a client, a
lawyer shall not "knowingly advance a factual position unless
there is a basis for doing so that is not frivolous; . . . ."

                                     8
                                                                          No.   2009AP284-D



that Attorney Eisenberg had violated SCR 20:3.4(a) and (d)3 by

encouraging        his     client    to    make    objections    to       legally    proper

questions in his deposition, by disrupting the deposition with

deceitful and inflammatory representations about the examining

attorney, and by opposing a motion to compel discovery in bad

faith.         Finally, the referee concluded that Attorney Eisenberg's

failure to comply with the court's sanction order and judgment

for    a       period    of   several      years    constituted       a    violation       of

SCR 20:3.4(c).4

       ¶17      The      second    matter    at    issue   in    this       disciplinary

proceeding involves Attorney Eisenberg's financial arrangement

with       a   nonlawyer      in   the    representation    of    a       claimant    in   a

worker's compensation proceeding.                  Under the applicable statutes

and the rules of the Department of Workforce Development (DWD),

       3
           SCR 20:3.4(a) and (d) state as follows:

                 A lawyer shall not:

            (a) unlawfully obstruct another party's access to
       evidence or unlawfully alter, destroy or conceal a
       document   or    other   material    having  potential
       evidentiary value. A lawyer shall not counsel or
       assist another person to do any such act;

                 . . .

            (d) in pretrial procedure, make a frivolous
       discovery request or fail to make reasonably diligent
       effort to comply with a legally proper discovery
       request by an opposing party; . . . .
       4
       SCR 20:3.4(c) states 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; . . . ."

                                              9
                                                                      No.    2009AP284-D



nonlawyers    are       permitted     to   represent       worker's     compensation

claimants in negotiating settlements with insurers and to appear

before an administrative law judge (ALJ) on behalf of a claimant

if they meet certain requirements, including obtaining a license

from the DWD.       Wis. Stat. § 102.17(1)(c).              A nonlawyer who does

not have the necessary license or meet the requirements must

work with a licensed attorney, who represents the claimant.                            If

multiple attorneys have represented a claimant in succession and

they are unable to agree on how the fees are to be allocated, it

is the ALJ who allocates fees among the various attorneys.                           When

an attorney is involved, the DWD directs fees to be paid only to

attorneys.     Thus, nonattorney individuals who are not authorized

to appear before an ALJ and who work on a worker's compensation

matter must have an affiliation with an attorney of record and

receive compensation from the attorney.

     ¶18     J.M.Z. was an unlicensed medical doctor who provided

case management and evaluation                  services   for   a   number     of    law

firms and lawyers.             Because he was not authorized to appear
before an ALJ in worker's compensation matters, he worked with

claimants     in        such   matters     in      conjunction       with     licensed
attorneys.         He    apparently      referred     a    worker's     compensation

claimant, G.M., to a law firm where he worked.                       The lawyer with
whom J.M.Z. worked on such cases subsequently left the firm and

started his own firm.           J.M.Z. also subsequently left that firm
and developed a referral relationship with the lawyer in his new

practice.     One of the cases that J.M.Z. referred from the prior

firm to the lawyer's new firm was G.M.'s case.                              A dispute,
                                           10
                                                                             No.     2009AP284-D



however, developed between J.M.Z. and the lawyer over J.M.Z.'s

belief that the lawyer was not paying him the amounts J.M.Z.

believed        he     was    owed       on    referred    cases,      including          G.M.'s

worker's compensation case.

        ¶19    Ultimately,          J.M.Z.     ceased     working     with    the     attorney

and developed an association with Attorney Eisenberg.                                 Although

J.M.Z. was not a lawyer, Attorney Eisenberg testified in this

disciplinary proceeding that J.M.Z. had "pulled" G.M.'s case out

of the other lawyer's firm and had brought the case along with

him to Attorney Eisenberg's firm.                        Attorney Eisenberg was then

substituted as counsel of record.                        He testified, however, that

"there was almost nothing left that needed to be done" on the

case and that "[a]ll my office did was busy work."

        ¶20    When        G.M.'s    claim      was    settled,     the   prior       attorney

filed     an        attorney's       lien      against    the     settlement         proceeds.

According to Attorney Eisenberg, J.M.Z. told Attorney Eisenberg

that he wanted to get the money he thought was owed to him.                                    A

letter,        dated       September      4,     2007,    which       Attorney       Eisenberg
described as a "letter of protection," was sent under Attorney

Eisenberg's handwritten signature to advise the ALJ of Attorney
Eisenberg's          and     J.M.Z.'s     claim       against   the    settlement         monies

under a statutory lien for attorney fees.                         The September 4, 2007
letter        was    received       by    the     ALJ    the    following          day.      The

September 4, 2007 letter described the history of G.M.'s case
and its travels through the various law firms.                            It stated that

J.M.Z. had actually done the lion's share of the work on G.M.'s

case, much of which had occurred prior to J.M.Z.'s affiliation
                                                11
                                                                 No.    2009AP284-D



with    Attorney    Eisenberg.           Although     Attorney   Eisenberg     has

acknowledged that his firm was required to do very little work

on the case, the final paragraph of the letter argued that his

firm should receive the overwhelming majority of the legal fees.

That   paragraph    also      describes    an   agreement    between     Attorney

Eisenberg and J.M.Z. regarding G.M.'s case:

       For the above reasons, it seems most equitable that
       the Law Offices of Alan D. Eisenberg receive all but
       $1,000.00 in legal fees and $250.00 in costs, or a net
       amount of $23,288.29.    Please note that the present
       agreement between Attorney Alan D. Eisenberg and
       [J.M.Z.] involves a 50/50 split between them once a
       matter has been adjudicated and settled.      This is
       identical to the former agreement between [J.M.Z.] and
       [the prior attorney].
       ¶21    Apparently still upset with the prior attorney, J.M.Z.

sent a copy of Attorney Eisenberg's September 4, 2007 letter to

the OLR apparently as part of his complaint about the prior

attorney.       After speaking with J.M.Z. about his arrangements

with the various attorneys, an OLR investigator sent a letter to

Attorney      Eisenberg      regarding   the    investigator's     contact    with

J.M.Z. and Attorney Eisenberg's relationship with J.M.Z.                      In a

subsequent        telephone         conversation       involving       the     OLR

investigator, Attorney Eisenberg and J.M.Z., Attorney Eisenberg

denied,      contrary   to    the   statement    in   his   September    4,   2007

letter, that there was a fee-splitting agreement between himself

and J.M.Z.

       ¶22    Two days after this telephone conversation, Attorney

Eisenberg sent a second version of the "letter of protection"

(the September 26, 2007 letter) to the ALJ.                 The referee found

                                         12
                                                                         No.     2009AP284-D



that this September 26, 2007 letter was identical to the first

letter, with the sole exception that the final two sentences

referring to the 50/50 fee split between J.M.Z. and Attorney

Eisenberg and between J.M.Z. and the prior attorney had been

deleted.      This letter was also received by the ALJ.

       ¶23    In     subsequent        communications             with         the       OLR's

investigator,        Attorney    Eisenberg         claimed       that    he     had      never

entered into any fee-splitting agreement with J.M.Z., that he

had not dictated the September 4, 2007 letter, that no rough

draft of that letter had ever been given to him for review, and

indeed that the September 4, 2007 letter had been voided and

never sent to the ALJ.

       ¶24    The    referee    explicitly        and   specifically           found       that

Attorney      Eisenberg's      denial       of    having    entered       into       a     fee-

splitting      agreement       with     J.M.Z.      and     his     claim        that      the

September 4,        2007   letter     had   not    been    sent    to    the     ALJ       were

false.       The referee further found that, although there indeed

had been a fee-splitting agreement, which had been communicated
to the ALJ, there was no evidence that fees had actually been

split between Attorney Eisenberg and J.M.Z. pursuant to their
agreement after its existence had been disclosed to the OLR.

       ¶25    Based on these facts regarding the representation of
G.M. and the resulting OLR investigation, the referee concluded

that   Attorney      Eisenberg      had     committed      two    violations          of   the
Rules of Professional Conduct for Attorneys.                      First, by agreeing

to serve as a conduit to share fees that he did not earn with a

nonlawyer, and by agreeing to split fees on a 50/50 basis with a
                                            13
                                                     No.   2009AP284-D



nonlawyer, Attorney Eisenberg violated SCR 20:5.4(a),5 which is

enforced via SCR 20:8.4(a).6      Second, by falsely stating to the

OLR that he had never entered into a fee-splitting agreement

with J.M.Z. and that his September 4, 2007 letter had never been

sent to the ALJ, Attorney Eisenberg violated SCR 22.03(6),7 which

is enforced via SCR 20:8.4(h).8


     5
         SCR 20:5.4(a) states:

          (a) A lawyer or law firm shall not share legal
     fees with a nonlawyer, except that:

          (1) an agreement by a lawyer with the lawyer's
     firm, partner, or associate may provide for the
     payment of money, over a reasonable period of time
     after the lawyer's death, to the lawyer's estate or to
     one or more specified persons;

          (2) a lawyer who purchases the practice of a
     deceased,   disabled,   or  disappeared  lawyer  may,
     pursuant to the provisions of SCR 20:1.17, pay to the
     estate or other representative of that lawyer the
     agreed-upon purchase price;

          (3) a lawyer or law firm may include nonlawyer
     employees in a compensation or retirement plan, even
     though the plan is based in whole or in part on a
     profit-sharing arrangement; and

          (4) a lawyer may share court-awarded legal fees
     with a nonprofit organization that employed, retained
     or recommended employment of the lawyer in the matter.
     6
       SCR 20:8.4(a) says it is professional misconduct for a
lawyer to "violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another; . . . ."
     7
         SCR 22.03(6) provides:

          In   the  course   of  the    investigation,   the
     respondent's  wilful  failure   to   provide   relevant
     information, to answer questions fully, or to furnish
                                  14
                                                                            No.    2009AP284-D



        ¶26      In his report the referee also commented on Attorney

Eisenberg's         conduct        and    demeanor        during      the     disciplinary

proceedings before the referee.                   The referee noted that Attorney

Eisenberg gave multiple varying accounts of a number of events,

which often tended to minimize his own involvement and to cast

blame on others.             The referee commented that Attorney Eisenberg

had on numerous occasions leveled inaccurate criticisms against

the OLR's director and the attorney representing the OLR, even

making a false accusation that the OLR's counsel had made a

false statement to the referee.                      The referee found that the

statement        made   by    OLR's      counsel    was      supported      by    deposition

testimony and documentary evidence.                       In addition, the referee

stated      that    Attorney       Eisenberg      had   "attempted       to       engineer   a

false       picture     of   the    proceedings"        by    making     numerous       false

claims      on    the   record,      including      that      OLR's    counsel      and   the

referee had mocked and laughed at him during the evidentiary

hearing.         The referee further found that Attorney Eisenberg had

leveled untrue and unfair attacks on B.S. in an unsuccessful
attempt to discredit her.                  Moreover, as in other cases, the

referee noted that Attorney Eisenberg had repeatedly complained



        documents and the respondent's misrepresentation in a
        disclosure are misconduct, regardless of the merits of
        the matters asserted in the grievance.
        8
       SCR 20:8.4(h) says it is professional misconduct for a
lawyer to "fail to cooperate in the investigation of a grievance
filed with the office of lawyer regulation as required by SCR
21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR
22.04(1); . . . ."

                                             15
                                                                        No.    2009AP284-D



that he was being singled out for harsh treatment by the OLR,

going so far as to claim that the OLR was engaged in a "jihad"

against       him.      The     referee        summarized      Attorney       Eisenberg's

attitude and conduct throughout this disciplinary proceeding as

follows:       "In sum, [Attorney] Eisenberg refused to acknowledge

any   fault     or    wrongdoing       whatsoever,       and   remained       accusatory,

hostile, and defiant throughout."

        ¶27   With respect to the appropriate level of discipline,

the   referee        rejected       Attorney    Eisenberg's         argument    that   the

claims against him were de minimis and should not result in any

discipline.          The     referee    concluded    that      Attorney       Eisenberg's

violations were not based on mere technicalities, but to the

contrary, were serious and substantive ethical violations.                             The

referee also concluded that the OLR's request for a six-month

extension of the period of ineligibility to seek reinstatement

was not sufficiently supported by authority and was insufficient

under the facts of this case.

        ¶28   The     referee        conducted     his      own     review     of    prior

disciplinary         cases    and    concluded,     based      on    those    precedents,

that a two-year extension of Attorney Eisenberg's ineligibility

to seek reinstatement was a proper level of discipline in this

case.     As support for this recommendation, the referee discussed

a substantial number of prior decisions, including, inter alia,

In re Disciplinary Proceedings Against Horvath, 219 Wis. 2d 334,

579     N.W.2d 240      (1998),       in   which    an    attorney      who    had     been

disciplined on three prior occasions and whose license remained

suspended       received        an     additional     two-year         suspension      for
                                            16
                                                                        No.       2009AP284-D



repeatedly        engaging       in    deceitful      conduct        and      failing      to

cooperate       in     a     disciplinary          investigation,           and      In   re

Disciplinary       Proceedings        Against      Ratzel,    218    Wis. 2d 423,         578

N.W.2d 194 (1998), in which an attorney who had been disciplined

on three prior occasions was suspended for two years for making

fraudulent claims in litigation and making misrepresentations to

the Board of Attorneys Professional Responsibility (BAPR) during

its investigation.

       ¶29   Finally,        the      referee       recommended        that         Attorney

Eisenberg be ordered to pay the full costs of the disciplinary

proceeding.

       ¶30   Attorney       Eisenberg        has   appealed    from        the     referee's

report and recommendation.                Our consideration of his appeal and

our review of the referee's findings of fact, conclusions of

law,   and     sanction      recommendation         are    conducted        according     to

long-established standards.               Specifically, we affirm a referee's

findings     of      fact    unless     we    determine       them     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 establish

the appropriate level of discipline in light of the particular

facts of each case, independent of the referee's recommendation,

but benefiting from it.               In re Disciplinary Proceedings Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶31   Attorney       Eisenberg's        appellate      brief    in        this   court

frames   the      issue     on   appeal    broadly    as     whether       the     referee's

recommendation of an additional two years of ineligibility to
                                             17
                                                                                 No.        2009AP284-D



petition for reinstatement should be approved and adopted by

this court.          He does not present any narrower subissues nor does

he     organize       his     various          contentions           about     this     case       into

discrete       arguments.               For   the     sake      of    organization,          we    will

separate his various assertions, to the extent possible, into

matters of process and matters of substance.

        ¶32    On     the     procedural             side       of    the     ledger,        Attorney

Eisenberg levels several criticisms against the referee.                                       First,

he points to a number of quotations from the referee's report,

in which the referee stated, inter alia, that many of Attorney

Eisenberg's statements in this proceeding were willfully false,

that     Attorney           Eisenberg          had       engaged        in    "calculated           and

repetitive          efforts        to    confuse         and     confound,"      and        that    the

referee in his decades as a practicing attorney and referee had

never encountered "a more evasive, inconsistent, deceitful, and

untruthful witness."

        ¶33    Attorney       Eisenberg            also       complains      about     an    incident

where    the        referee       missed       a    hearing,         which    then     had     to    be

rescheduled.              Attorney        Eisenberg           asserts     that   this        incident

required him to sit in pain unnecessarily while waiting with a

witness he had brought to the hearing.                               This incident was also

part          of          Attorney            Eisenberg's             prior          interlocutory

disqualification motion in this court.

       ¶34     Although Attorney Eisenberg points to these facts in

his    brief        and     oral     argument,           he    never     develops       any       legal

argument           from     the      facts.              His     previous        motion        sought

disqualification of the referee because of the referee's alleged
                                                    18
                                                                         No.       2009AP284-D



bias against Attorney Eisenberg, but he does not develop any

such argument in his appeal.                    He cites no legal authority of any

sort regarding the standard for disqualifying a judge or referee

due to bias.          He never explains how the facts that he cites

prove       that    the    referee        was     biased     against    him    under      the

applicable standard.           We therefore will not address this matter

further because we will not develop Attorney Eisenberg's legal

argument for him.9

     ¶35      Attorney      Eisenberg       also       criticizes      the   OLR    and   its

retained counsel in this proceeding.                       First, he implies that the

OLR has pursued this and other disciplinary cases against him

because of some vendetta.                  He contends that he has become the

"OLR's piñata."           With respect to OLR's counsel, he contends that

during the evidentiary hearing opposing counsel laughed at and

mocked him.

     ¶36      Attorney      Eisenberg           also   asserts    that       the    OLR   has

informed      him    that    it      is     withholding        nine    more    counts      of

misconduct, which it intends to pursue in the event that he
would petition for the reinstatement of his license.                                  Citing


        9
       We note, however, that the referee's comments about
Attorney Eisenberg's conduct and testimony in this proceeding
are proper subjects of a referee's report.        While Attorney
Eisenberg may not like the manner in which the referee described
his credibility determinations, Attorney Eisenberg has not
presented a single instance in which the referee's comments are
inaccurate or are based on something other than the evidence and
testimony in this proceeding.     Similarly, while the incident
with missing a hearing is regrettable, Attorney Eisenberg fails
to show how the referee's missing a hearing was directed
specifically at him or showed a bias against him.

                                                19
                                                                       No.        2009AP284-D



only an unpublished court of appeals opinion in a criminal case

that addressed the withholding of requested evidence, Attorney

Eisenberg contends that the OLR's failure to pursue those nine

additional charges in this proceeding violates his due process

rights.

      ¶37    We    find   no   merit     to     any    of     Attorney       Eisenberg's

complaints regarding the OLR and its counsel as they pertain to

this disciplinary proceeding.             We see no evidence that the OLR

is pursuing disciplinary cases against Attorney Eisenberg simply

because of who he is.            Each of the prior disciplinary cases

against     Attorney      Eisenberg       brought        by     the     OLR        or     its

predecessor, BAPR, resulted in findings of misconduct and the

imposition of professional discipline by this court.                          Pursuing a

meritorious case in this instance against Attorney Eisenberg is

not an invalid exercise of prosecutorial discretion.

      ¶38    We    further     note      that     in     response        to        Attorney

Eisenberg's       claim   that OLR's     counsel       had    laughed        at    him    and

mocked him, the referee indicated that he had not observed any
such conduct and that Attorney Eisenberg's claim was false.                               The

referee cited this claim as one example of Attorney Eisenberg's
attempt to "engineer a false picture of the proceedings."

      ¶39    With respect to the alleged additional counts that the
OLR is purportedly withholding until Attorney Eisenberg files a

petition for reinstatement, we note that Attorney Eisenberg has
not   provided      factual    support    for     his       claim.       Even       if    his

contention    is    accurate,    any     due    process       claim    regarding          the

timeliness    of    prosecuting       those     claims      would     relate       only    to
                                         20
                                                         No.    2009AP284-D



those claims, if they were ever pursued.            Attorney Eisenberg

never explains how any delay in prosecuting those other nine

claims, which are not before this court, affects his due process

rights with respect to the five counts of misconduct that the

OLR   has   pursued   and   that   are   before   the   court    in   this

proceeding.    There simply can be no due process violation in

this case due to the timeliness of other charges of professional

misconduct that have not been alleged in this case.10

      ¶40   Attorney Eisenberg's arguments regarding the substance

of the referee's report are similarly without merit.            He pursues

essentially two substantive arguments in his brief.             First, he

merely repeats his version of the facts.          For example, he again

claims that he was unaware of the language in the September 4,

2007 "letter of protection," that he signed the letter in haste,

and that he withdrew the letter three weeks later.         He therefore

implies that he never actually had a fee-splitting agreement

with J.M.Z., as the letter states.       His factual claims, however,

including his assertions regarding the fee-splitting letter of
protection, were expressly rejected by the referee.               Attorney

      10
       Indeed, it is interesting to note that Attorney Eisenberg
also criticizes the OLR for continuing this disciplinary
proceeding after his license was revoked in Eisenberg V. In re
Disciplinary Proceedings Against Eisenberg, 2010 WI 11, 322
Wis. 2d 518, 778 N.W.2d 645. He implies that there was no valid
reason for continuing this disciplinary proceeding and that the
only reasons for the OLR to move forward with this case were to
harass him and to increase the amount of costs he will have to
pay.   Given these concerns, it is an irreconcilable conflict
also to claim that the OLR is violating his rights by choosing
not to prosecute additional misconduct charges against him in
this proceeding.

                                   21
                                                                          No.    2009AP284-D



Eisenberg is obligated to demonstrate how the referee's factual

findings were clearly erroneous.                    He has not even attempted to

do so.        Simply repeating his version of the facts in the face of

the referee's clear and unambiguous adverse findings of fact has

no appellate worth.

        ¶41    After       conducting     our     review,    we   find     no       basis    to

conclude       that     the      referee's      findings     of    fact       are    clearly

erroneous,       with      one    minor   exception        that   has    no     bearing      on

whether Attorney Eisenberg engaged in professional misconduct.

The   referee        expressly     found     that    the    September      4,       2007    and

September 26, 2007 letters signed by Attorney Eisenberg were

identical, except for the deletion of the final two sentences,

which set forth the fee-splitting agreements between J.M.Z. and

Attorney Eisenberg and between J.M.Z. and the previous attorney.

While much of the earlier parts of the two letters are the same,

there are some other differences, although those differences are

not   relevant        to    the    fee-splitting      charge      at    issue        in    this

disciplinary case.            Thus, with the exception of the finding that
the two letters were identical but for the deletion of the last

two sentences, we accept and adopt the referee's findings of
fact.

      ¶42      The    other      substantive      argument    that      can     be   gleaned
from Attorney Eisenberg's brief and oral argument is that any

violations in these two representations were de minimis, and

therefore should not be treated as violations.                           First, whether

the violations were insubstantial would bear on the level of

discipline that should be imposed, not on whether the findings
                                             22
                                                                            No.     2009AP284-D



of fact demonstrate that Attorney Eisenberg committed the rule

violations.          Second, we disagree that the violations charged in

this    proceeding          are   de    minimis.            Alleging    and       pursuing    a

frivolous claim and then engaging in bad faith tactics designed

to frustrate the opponent's discovery and defense of that claim

are    serious       ethical      violations.               Moreover,       while    Attorney

Eisenberg did ultimately satisfy the cost judgment imposed on

him for the frivolous claim against B.S. in an amount that was

substantially greater than the original judgment, his refusal to

pay that cost judgment for years signified a cavalier disregard

for the circuit court's orders.                      Finally, agreeing to split fees

with   a     nonlawyer      and     then   lying       to   investigators          about   that

agreement is clearly more than a technical violation.

       ¶43    We     note    that      while    Attorney       Eisenberg       attempts      to

downplay       the     seriousness         of    his        misconduct,       he     has   not

explicitly argued that the facts as found by the referee do not

satisfy the elements of the charges against him.                             Our review of

the matter leads us to agree with the referee that the facts of

this   case     clearly       and      convincingly         support     a    conclusion      of
misconduct on each of the five counts at issue.

       ¶44    We turn now to the question of the proper level of
discipline.        Of great importance to this issue is the fact that

this is the sixth time that Attorney Eisenberg has been the
subject of professional discipline due to misconduct.                               Moreover,

there is a recurring pattern of behavior and disregard for the

rules that govern the privilege of practicing law in this state.

This is not the first time that Attorney Eisenberg has been
                                                23
                                                                             No.    2009AP284-D



found to have commenced sham or frivolous litigation.                                     It is

also not the first time that he has provided false statements to

the regulatory authorities investigating his conduct.                                    Indeed,

even     during       the    course    of    this       disciplinary      proceeding,          the

referee found that Attorney Eisenberg had repeatedly changed his

story        on   several         issues    in    an     apparent      attempt      to    avoid

discipline        for       his   misconduct.           The    referee    found     that       his

claims were nothing more                   than       fabrications.         Further,      as    we

noted        above,    the    misconduct         we    have    found   in    this    case       is

serious and represents a flagrant misuse of the law and the

position of attorney for self-serving ends.                            Finally, Attorney

Eisenberg has not demonstrated an acceptance of responsibility

or remorse for his misconduct.                    To the contrary, as the referee

pointed out, he has attempted to place blame on everyone else,

including the OLR's counsel and the referee, and to minimize the

seriousness of his misconduct.                         We     therefore     agree   with       the

referee that our prior precedents and the particular facts of

this case warrant imposing a two-year suspension, which shall
run consecutive to the period of ineligibility required by the

prior revocation of Attorney Eisenberg's license to practice law
in this state.11

        11
        We have on prior occasions extended the ineligibility of
a previously revoked or suspended attorney to petition for
reinstatement upon a finding that an additional period of
suspension is warranted by the attorney's further misconduct.
See, e.g., In re Disciplinary Proceedings Against Weber, 219
Wis. 2d 342, 345, 579 N.W.2d 229 (1998) (imposing additional
six-month period of ineligibility on attorney whose license had
been   previously  revoked);   see  also   In   re  Disciplinary
Proceedings Against Edgar, 2003 WI 49, ¶13, 261 Wis. 2d 413, 661
                                                 24
                                                               No.     2009AP284-D



      ¶45    Finally, we address the issue of the costs of this

proceeding.        Attorney    Eisenberg      submitted      two     letters   in

response to the OLR's initial statement of costs, in which he

made unsupported claims regarding the OLR's attorney fees and

the   referee's    fees.      He   asked    for   mediation   or     arbitration

regarding the OLR's fees or for an evaluation of the OLR's and

the referee's fee invoices by a third party.                       A portion of

Attorney Eisenberg's brief in this court and a significant part

of his oral argument was also directed to arguing that he should

not have to pay any costs.            However, when the OLR filed its

supplemental statement of costs after oral argument, Attorney

Eisenberg did not lodge any objection.

      ¶46    In addition to claiming that the referee's and the

OLR's fees were inflated, Attorney Eisenberg also contends that

there was no need for much of the OLR's and the referee's work

because the OLR claimed that his defenses to the charges in this

proceeding    were   frivolous.        He    claims   that    he     offered   to

voluntarily refrain from ever seeking the reinstatement of his
license, which would have eliminated the need for any further

fees, but the OLR refused his offer.              He further states that he
has no financial resources to pay any cost award.

      ¶47    The general policy of this court, absent extraordinary
circumstances, is to impose the full costs of a disciplinary

proceeding    on   the   attorney   whose    misconduct      necessitated      the


N.W.2d 817 (imposing one-year suspension to run consecutive to
the end of a prior two-year suspension).

                                      25
                                                                               No.   2009AP284-D



proceeding.           SCR    22.24(1m).            An    attorney        who    objects       to   a

statement       of     costs        filed     by        the    OLR    must       state,       with

specificity, the bases for the objection and must also provide

an    amount    that        he/she    believes          to    be   reasonable        under     the

circumstances.              SCR     22.24(2).           Attorney      Eisenberg         has    not

complied       with        either    requirement.              He    makes       only     broad,

unsupported assertions and never indicates what he believes to

be a reasonable amount of costs.                        Moreover, to the extent that

Attorney Eisenberg contends that some expenses incurred by the

OLR's counsel or the referee were unnecessary because the OLR

claimed his defenses were without merit, we note that Attorney

Eisenberg continued to litigate this matter aggressively, cross-

examining the OLR's witnesses, calling his own witnesses and

appealing the referee's report and recommendation to this court.

One cannot litigate aggressively and then criticize the opposing

party for doing the same.                   We therefore find no extraordinary

circumstances         that     would       warrant       deviating       from    our    general

policy.      To the extent that Attorney Eisenberg contends that he
is financially unable to pay the costs of this proceeding, he

has   provided        no    proof     of    his       financial      situation.          He    may
provide financial information to the OLR and negotiate a payment

plan with that agency.
       ¶48     IT IS ORDERED that the license of Alan D. Eisenberg to

practice     law      in    Wisconsin       is    suspended        for    a    period    of    two
years, effective April 1, 2015.




                                                 26
                                                                      No.   2009AP284-D



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

of this order, Alan D. Eisenberg shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

     ¶50    IT IS FURTHER ORDERED that, to the extent he has not

already    done    so,    Alan     D.    Eisenberg     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    or

revoked.

    ¶51     IT    IS     FURTHER        ORDERED that    compliance          with   all

conditions of this order is required for reinstatement.                            See

SCR 22.28(3).




                                           27
    No.   2009AP284-D




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