                                                             2014 WI 53

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2012AP2341-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Mark Alan Ruppelt, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Mark Alan Ruppelt,
                                 Respondent.



                           DISCIPLINARY PROCEEDINGS AGAINST RUPPELT

OPINION FILED:         July 8, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:          BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
                       filed.)
  NOT PARTICIPATING:

ATTORNEYS:
                                                                       2014 WI 53
                                                                NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.       2012AP2341-D


STATE OF WISCONSIN                           :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Mark Alan Ruppelt, Attorney at Law:

Office of Lawyer Regulation,                                        FILED
              Complainant,
                                                                JUL 8, 2014
      v.
                                                                  Diane M. Fremgen
                                                               Clerk of Supreme Court
Mark Alan Ruppelt,

              Respondent.




      ATTORNEY        disciplinary      proceeding.     Attorney          publicly

reprimanded.



      ¶1      PER CURIAM.       We review a report and recommendation of

Referee Richard C. Ninneman approving the Stipulation and No

Contest Plea filed by the Office of Lawyer Regulation (OLR) and

Attorney       Mark      Alan    Ruppelt.1        In      the       stipulation,

Attorney Ruppelt pled no contest to three counts of misconduct

      1
       In the documents filed in this matter, the spelling of
Attorney Ruppelt's middle name varies. We note that his name as
listed with the State Bar of Wisconsin is "Mark Alan Ruppelt,"
and we therefore use that spelling throughout this opinion.
                                                                                No.    2012AP2341-D



as    alleged       in     the    complaint         filed     by    the        OLR.      The       OLR

voluntarily dismissed Count Four of the complaint.                                    The parties

jointly          recommended      that       the    sanction        imposed       be    a    public

reprimand.          The referee approved the stipulation and recommended

that        this      court        publicly             reprimand     Attorney              Ruppelt.

Attorney Ruppelt filed a timely objection to the OLR's statement

of    costs,       which     sought       costs     of    $18,443.05.            The    referee's

amended recommendation as to the assessment of costs was that

the    requested         fees      for       retained      counsel     be       reduced       by    50

percent, which would reduce the costs assessed against Attorney

Ruppelt to $9,990.55.

       ¶2         After carefully reviewing the matter, we uphold the

referee's findings of fact and conclusions of law.                                      We agree

with       the    referee     that       a   public      reprimand        is    an    appropriate

sanction.          We also agree with the referee that it is appropriate

to reduce the costs of this proceeding to $9,990.55.

       ¶3         Attorney       Ruppelt      was       admitted     to     practice         law    in

Wisconsin in 1994 and practices in Milwaukee.                              He was previously
a partner in the law firm of Gatzke & Ruppelt SC (the Firm),

located in Waukesha County.

       ¶4         In 2007, T.W. retained the Firm to represent her in

two legal matters.               The first was a civil claim against a former

teacher and his employer based on the teacher's alleged sexual

assaults of T.W. when she was a student at the school.2                                            The
       2
       According to the Wisconsin Court System Circuit Court
Access web site, T.W. was born in 1980, which means she was 27
years old when she retained the Firm to represent her in the two
legal matters.

                                                    2
                                                                        No.     2012AP2341-D



other   matter     was    to    assist   T.W.    as   a    victim/witness          in   the

criminal case pending against the teacher.                   Prior to undertaking

representation of T.W., Attorney Ruppelt had not had a sexual

relationship with her.

      ¶5    Attorney Ruppelt attempted without success to settle

T.W.'s civil claims against the former teacher and the school.

In March of 2008, Attorney Ruppelt filed a lawsuit against the

former teacher and the school.             From March 2008 through February

2009, Attorney Ruppelt filed numerous pleadings on T.W.'s behalf

in   the   civil    case       and   appeared    at   hearings          and   scheduling

conferences.       In August of 2008, Attorney Ruppelt appeared as

counsel of record for T.W. at the former teacher's sentencing

hearing in the criminal case.

      ¶6    In April of 2009, while the civil and criminal cases

were still pending, Attorney Ruppelt and T.W. began a sexual

relationship.       In mid-April 2009, the Firm became aware that

Attorney Ruppelt may have been engaging in a sexual relationship

with T.W. while representing her.               Attorney Ruppelt continued to
represent T.W. until he and the Firm determined he could no

longer do so, given the concerns surrounding the nature of his

relationship with T.W.

      ¶7    On     April       19,    2009,     Attorney      Ruppelt           met     with

Attorney James Gatzke, and Paul Bucher, another senior attorney

at   the   law     firm,       to    discuss    the       Firm's    concerns          about

Attorney Ruppelt's         relationship        with   T.W.         At     the     meeting,

Attorney Ruppelt         falsely     represented      to    Attorneys         Gatzke    and
Bucher that he had not received or exchanged any texts, e-mail,
                                          3
                                                                    No.    2012AP2341-D



or voicemail messages of any kind with T.W. that were of a

personal nature and unrelated to the law firm's representation

of    T.W.    in      her    civil     and       criminal     cases.       In   fact,

Attorney Ruppelt had received an e-mail from T.W. on April 17,

2009, that was of a personal nature.                   At the April 19 meeting,

Attorney Ruppelt falsely represented that he had not engaged in

a    sexual    relationship          with    T.W.     while     representing        her.

Attorney Ruppelt agreed not to have contact with T.W. following

the April 19 meeting.             On several occasions after April 19,

2009, Attorney Ruppelt denied to Attorney Gatzke that he was

involved in a romantic relationship with T.W.

      ¶8      In May or June of 2009, Attorney Ruppelt acknowledged

to Attorney Gatzke that he was engaging in a sexual relationship

with T.W. at that time.

      ¶9      On October 15, 2009, the OLR sent Attorney Ruppelt a

letter notifying him of its pending investigation regarding his

relationship with T.W. while representing her.                      In late October

2009, Attorney Ruppelt responded to the grievance and falsely
indicated      that    his    representation          of    T.W.   was    limited     to

assisting     her     in    drafting    a    victim    impact      statement.        His

response stated that Attorney Gatzke was lead counsel in the

civil case and that Attorney Ruppelt only filled in when needed.

The response also falsely represented that Attorney Ruppelt had

not engaged in sexual relations with T.W. at a time when his law

firm was representing her in the civil case.                       Attorney Ruppelt

further falsely represented that T.W.'s e-mail of April 17, 2009
was unsolicited and not responded to by him.
                                             4
                                                                         No.        2012AP2341-D



       ¶10     The OLR directed Attorney Ruppelt to provide a more

complete response.            Attorney Ruppelt and an OLR investigator had

a     telephone       conference      on     October      30,    2009.          During        the

telephone conference, Attorney Ruppelt falsely represented that

the    April    17,    2009       e-mail   was    "all    fabrication."              He     again

falsely represented that his representation of T.W. was limited

to assisting her in drafting a victim impact statement in the

criminal       case.         He     also   falsely        represented          to     the     OLR

investigator that Attorney Gatzke was lead counsel in the civil

case and that Attorney Ruppelt only filled in when needed.

       ¶11     On     November      13,    2009,        Attorney    Ruppelt           filed     a

supplemental response to the OLR's inquiry.                          The supplemental

response falsely represented that Attorney Ruppelt had not begun

a sexual relationship with T.W. until June 27, 2009, and thus

had not had a sexual relationship with her at any time while

representing her on behalf of his law firm.                          The supplemental

response       also    falsely       represented        that     Attorney       Gatzke        and

Attorney       Ruppelt    had      decided    Attorney      Ruppelt's       contact          with
T.W.    should      cease     because      she    had    sent    Attorney       Ruppelt        an

unsolicited         e-mail    alluding       to   inappropriate      contact          that     he

denied.      The supplemental response also falsely represented that

Attorney Ruppelt had told Attorney Gatzke about T.W.'s April 17,

2009 e-mail and asserted that the decision to remove himself

from     T.W.'s        legal       matters        was     made     between           him      and

Attorney Gatzke,         without        mentioning        Attorney       Bucher        or     the

Firm's investigation.


                                              5
                                                          No.   2012AP2341-D



     ¶12   On April 20, 2009, as part of the Firm's investigation

of Attorney Ruppelt's relationship with T.W., Attorney Bucher

met with T.W.        During the meeting, T.W. denied that she and

Attorney Ruppelt had engaged in a sexual relationship while he

was representing her on behalf of the Firm.            T.W. subsequently

had a telephone conference with an OLR investigator.            During the

telephone conference T.W. denied that Attorney Ruppelt had had a

sexual relationship with her during the period of time he was

representing her on behalf of the Firm.           She also denied sending

the April 17, 2009 e-mail.

     ¶13   Attorney Ruppelt and T.W. were married in June 2010.

On   October   26,    2012,   the   OLR   filed    a   complaint   against

Attorney Ruppelt alleging four counts of misconduct:

          [COUNT ONE] By engaging in sexual relations with
     [T.W.] while he was representing her in [civil and
     criminal cases], when they had not engaged in a
     consensual   sexual    relationship   prior  to   the
     commencement of the attorney-client relationship,
     [Attorney] Ruppelt violated SCR 20:1.8(j).3

          [COUNT TWO] By providing false information to his
     Firm   regarding  the   nature  and   timing   of  his
     relationship with [T.W.], by failing to disclose
     information to his Firm regarding the nature and
     timing of his relationship with [T.W.], and by
     engaging in a course of conduct to conceal from his
     Firm the nature and timing of his relationship with




     3
       SCR 20:1.8(j) states, "A lawyer shall not have sexual
relations with a current client unless a consensual sexual
relationship existed between them when the client-lawyer
relationship commenced."

                                    6
                                                No.   2012AP2341-D


    [T.W.], [Attorney] Ruppelt violated SCR 20:8.4(f)4 and
    Disciplinary    Proceedings    Against    Shea,    190
                                            5
    Wis. 2d 560, [527] N.W.2d [314] (1995).

         [COUNT THREE] By providing false information to
    OLR and failing to provide relevant information to OLR
    regarding the scope and time of his representation of
    [T.W.], and/or by providing false information to OLR
    and failing to provide relevant information to OLR
    regarding the nature and timing of his relationship
    with [T.W.], and/or by providing false information to
    OLR and failing to provide relevant information to OLR
    regarding his Firm's investigation of his relationship
    with     [T.W.],    [Attorney]     Ruppelt    violated




    4
       SCR 20:8.4(f) states it is professional misconduct for a
lawyer to "violate a statute, supreme court rule, supreme court
order or supreme court decision regulating the conduct of
lawyers; . . . ."
    5
       The Shea court found an attorney's pattern of conduct
"constituted a breach of his fiduciary duty to his law firm and
his duty of honesty in his professional dealings with it."

                               7
                                                       No.     2012AP2341-D


    SCR [22.03(2)]6    and   SCR       22.03(6),7   enforced     via
    SCR 20:8.4(h).8

         [COUNT FOUR] By assisting or inducing [T.W.] to
    provide false information to OLR and to withhold
    relevant information from OLR regarding the nature and
    timing of [Attorney] Ruppelt's relationship with
    [T.W.], and/or by assisting or inducing [T.W.] to
    provide false information to OLR and to withhold
    relevant information from OLR regarding [Attorney]
    Ruppelt's Firm's investigation of the nature and
    timing of [Attorney] Ruppelt's relationship with
    [T.W.], and/or by assisting and inducing [T.W.] to
    provide false information to OLR and to withhold
    relevant information from OLR regarding [T.W.]'s
    knowledge of events relevant to OLR's investigation,
    and/or by failing to advise OLR that [T.W.] had
    provided or intended to provide false information to

    6
        SCR 22.03(2) states as follows:

         Upon commencing an investigation, the director
    shall notify the respondent of the matter being
    investigated unless in the opinion of the director the
    investigation of the matter requires otherwise.     The
    respondent shall fully and fairly disclose all facts
    and circumstances pertaining to the alleged misconduct
    within 20 days after being served by ordinary mail a
    request for a written response.      The director may
    allow additional time to respond.     Following receipt
    of the response, the director may conduct further
    investigation and may compel the respondent to answer
    questions,   furnish   documents,   and   present   any
    information deemed relevant to the investigation.
    7
       SCR 22.03(6) provides as follows: "In the course of the
investigation, the respondent's wilful failure to provide
relevant information, to answer questions fully, or to furnish
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) states 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); . . . ."

                                   8
                                                                        No.    2012AP2341-D


    OLR and had withheld or intended to withhold relevant
    information from OLR, [Attorney] Ruppelt violated
    SCR 22.03(6),   enforced  via   SCR   20:8.4(h)   and
    SCR 20:8.4(a).9
    ¶14    The     complaint        sought          a    60-day         suspension        of

Attorney Ruppelt's      license          to       practice       law     in    Wisconsin.

Attorney Ruppelt      filed        an     answer         to      the      complaint      on

November 13, 2012.      Following the recusal of one referee and a

motion for substitution of second referee, Referee Ninneman was

appointed on April 16, 2013.

    ¶15    The matter was set for a hearing that was scheduled to

commence   on    September    16,       2013.       Prior      to   the      hearing,   the

parties    entered    into     a     stipulation,             which      was    filed    on

September 19, 2013.         The parties stipulated that the OLR would

voluntarily       dismiss      Count              Four      of         its     complaint.

Attorney Ruppelt agreed to plead no contest to Counts One, Two,

and Three of the complaint and agreed that the referee could use

the allegations of the complaint as an adequate factual basis in

the record for a determination of misconduct as to those counts.

The parties jointly recommended that the sanction imposed be a

public reprimand.

    ¶16    On October 9, 2013, the referee issued his report and

recommendation.      Based on the stipulation, the referee found by

clear,     satisfactory,            and           convincing           evidence         that

Attorney Ruppelt violated the supreme court rules as alleged in

    9
       SCR 20:8.4(a) states that 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; . . . ."

                                              9
                                                                     No.     2012AP2341-D



Counts One, Two, and Three of the complaint.                        The referee also

recommended that this court publicly reprimand Attorney Ruppelt

for his disciplinary violations.

      ¶17     The OLR filed its statement of costs on October 29,

2013.       The OLR sought costs and disbursements of $18,443.05.

The     OLR   noted      that     its   complaint     alleged       four     counts     of

misconduct and, as part of the stipulation, the OLR agreed to

dismiss Count Four.             The OLR also noted that while it initially

sought a 60-day suspension of Attorney Ruppelt's license, after

Count     Four     was     dismissed     the    OLR    revisited       its     sanction

recommendation and the OLR director determined that a public

reprimand     was     an    appropriate    sanction.          The    OLR     said     that

Attorney      Ruppelt      was    uncooperative       in   part     with     the    OLR's

investigation.        The OLR also said:

      Although the litigation was ultimately resolved by
      stipulation short of a hearing, this stipulation did
      not occur until after the case had been pending almost
      a   year.     Discovery,  including   depositions  was
      extensive. Attorney Ruppelt's discovery requests were
      onerous and resulted in OLR's expenditure of a
      tremendous amount of time (the majority of which was
      internal staff time and not even charged herein to
      Attorney   Ruppelt).     Counsel   costs   herein  are
      substantial but were paid out by OLR as reasonable and
      necessarily incurred.
      ¶18     Attorney      Ruppelt     filed    an   objection       to     the    OLR's

statement     of    costs    on    November     19,   2013.       Attorney      Ruppelt

asserts that he was in fact cooperative and proposed to enter

into a stipulation that was ultimately adopted after thousands

of dollars in costs were incurred by the OLR, primarily through
retained counsel's legal fees of nearly $17,000.

                                          10
                                                           No.   2012AP2341-D



    ¶19    Attorney Ruppelt said that on January 14, 2013, his

counsel sent a letter to the OLR offering to discuss the case

before either side invested a significant amount of time and

money.    Attorney Ruppelt said:

    Respondent explained in the January 14 letter that his
    lack of complete candor was an effort to protect
    [T.W.] as opposed to any desire to mislead OLR. While
    recognizing that being a gentleman and consideration
    of [T.W.'s] personal interests didn't excuse a failure
    to be candid with OLR, respondent requested that
    failure be put in proper context. . . .

    This was not an attempt to save respondent or to hide
    improper conduct from others; it was motivated by a
    desire to protect a woman for whom respondent had, at
    that point, extremely strong feelings, evidenced by
    the fact that they [have] since married and have had
    children together.     It was in that context that
    respondent suggested that his actions should be viewed
    as a less serious offense warranting less serious
    discipline than a failure to cooperate or respond
    candidly would under other circumstances.
    ¶20    Attorney    Ruppelt    notes    that    while   the   OLR   seeks

counsel fees and disbursements of $16,926.09, the fees charged

by Attorney Ruppelt's counsel from the time the OLR filed its

complaint in October of 2012 through the time the stipulation

was entered into total only $6,150.          Attorney Ruppelt suggests

that any award of costs made should be in an amount not greater

than the fees Attorney Ruppelt himself has been charged.

    ¶21    The   OLR   replied   to   Attorney    Ruppelt's   objection    to

costs on November 21, 2013, and said it stands by its original

costs statement.

    ¶22    The referee issued his amended recommendation as to
the assessment of reasonable costs on December 9, 2013.                   The

                                      11
                                                                     No.    2012AP2341-D



referee stated that this was not a complicated case involving

multiple client matters, nor was this a case involving extensive

discovery.       The referee said he was troubled by the fact that

retained      counsel        spent      33.7     hours     reviewing       the     OLR's

investigative file and drafting the complaint, which was more

than   the    27.33       hours    that   Attorney       Ruppelt's    counsel      spent

defending the matter from the time of the filing to the time of

the stipulation.

       ¶23    The referee said he was also troubled that retained

counsel      billed       approximately    125    hours     for    discovery,      which

included responding to Attorney Ruppelt's request for production

of documents and conducting two depositions, one by telephone,

of Attorney Ruppelt's two former law partners/employers.                                The

referee said, "[M]ost importantly, this referee is very troubled

by the fact that the OLR's retained counsel billed 241.5 hours

in   this     matter,       resulting     in    $16,905    in     total    fees,       when

respondent's counsel was proposing some type of reprimand as

opposed to a sixty-day suspension as early as January 14, 2013
as reflected in retained counsel's own billing records."

       ¶24    The    referee      recommends     that    the    requested       fees    for

outside counsel be reduced by 50 percent, making the recommended

costs in this matter $9,990.55 as opposed to the requested costs

of $18,443.05.

       ¶25    This court will adopt a referee's findings of fact

unless    they      are    clearly   erroneous.          Conclusions       of   law     are

reviewed de novo.             See In re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                              The
                                           12
                                                                      No.    2012AP2341-D



court may impose whatever sanction it sees fit 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.

    ¶26     We     adopt        the    referee's        findings       of        fact    and

conclusions of law that Attorney Ruppelt violated the supreme

court rules as alleged in Counts One, Two, and Three of the

OLR's complaint.          We also agree with the referee that a public

reprimand   is     an    appropriate        sanction      for    Attorney        Ruppelt's

misconduct.

    ¶27     We turn next to the issue of costs.                          Assessment of

costs in OLR matters is governed by SCR 22.24.                              Our general

policy is that upon a finding of misconduct it is appropriate to

impose all costs, including the expenses of counsel for the OLR,

upon the respondent.              In some cases this court may, in the

exercise of its discretion, reduce the amount of costs imposed

upon a respondent.             In exercising its discretion regarding the

assessment of costs, the court will consider the statement of

costs,   any     objection       and   reply,      the    recommendation           of    the
referee, and all of the following factors: the number of counts

charged, contested, and proven; the nature of the misconduct;

the level of discipline sought by the parties and recommended by

the referee; the respondent's cooperation with the disciplinary

process;    prior        discipline,        if     any;        and   other        relevant

circumstances.

    ¶28     Upon      consideration      of      the   relevant      factors       and   the

submissions of the parties, we agree with the referee that it is
appropriate      in     this    case   to    reduce      the    amount      of    retained
                                            13
                                                        No.    2012AP2341-D



counsel's fees by 50 percent.         In making our determination on

costs, we appreciate the referee's analysis.            On balance, we

find it appropriate to follow the referee's recommendation and

reduce retained counsel's fees by 50 percent.         Our determination

is not the result of the application of a precise mathematical

formula, but instead is based on our thorough consideration of

the record, the manner in which this case developed, and the

factors set forth in SCR 22.24(1m).

    ¶29   IT   IS   ORDERED   that   Mark   Alan   Ruppelt    is   publicly

reprimanded for professional misconduct.

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

of this order, Mark Alan Ruppelt shall pay to the Office of

Lawyer Regulation the imposed costs of this proceeding, which

are $9,990.55.

    ¶31   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 decision.




                                     14
                                                  No.   2012AP2341-D.awb


    ¶32   ANN WALSH BRADLEY, J.       (dissenting).     The discipline

should be more than a public reprimand.        Attorney Ruppelt not

only violated SCR 20:1.8(j), but also violated SCR 20:8.4(h) and

(f) by repeatedly misrepresenting the facts to his law firm and

the OLR, as explicitly set forth in the opinion.          Per curiam,

¶¶7, 9, 10, 11.

    ¶33   In addition, I would impose full costs.        SCR 22.24(1m)

states the court's "general policy [] that upon a finding of

misconduct, it is appropriate to impose all costs."          The rule

then sets forth the factors to consider when determining whether

to deviate from that general policy and reduce the costs.

    ¶34   Because the per curiam does not explain or evaluate

how those factors apply in this case, there has been no showing

that we should deviate from our general policy here.

    ¶35   I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON joins this dissent.




                                  1
    No.   2012AP2341-D.awb




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