                                                                2013 WI 81

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2011AP1049-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Sharon A. Riek, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Appellant,
                             v.
                        Sharon A. Riek,
                                  Respondent-Respondent.

                              DISCIPLINARY PROCEEDINGS AGAINST RIEK

OPINION FILED:          July 23, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 26, 2013

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For        the   complainant-appellant,   there   were   briefs   by
Jonathan E. Hendrix and the Office of Lawyer Regulation, and
oral argument by Jonathan E. Hendrix.




       For the respondent-respondent, there was a brief by Martin
E. Kohler and Geoffrey R. Misfeldt and Kohler and Hart, S.C.,
Milwaukee, and oral argument by Geoffrey R. Misfeldt.
                                                                             2013 WI 81
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2011AP1049-D


STATE OF WISCONSIN                                :               IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Sharon A. Riek, Attorney at Law:

Office of Lawyer Regulation,                                              FILED
              Complainant-Appellant,
                                                                     JUL 23, 2013
      v.
                                                                        Diane M. Fremgen
                                                                     Clerk of Supreme Court
Sharon A. Riek,

              Respondent-Respondent.




      ATTORNEY disciplinary proceeding.                 Complaint dismissed.



      ¶1      PER   CURIAM.      The    Office    of   Lawyer      Regulation (OLR)
appeals a referee's decision recommending the court dismiss a

disciplinary        complaint    alleging   that       Attorney      Sharon     A.    Riek
violated SCR 20:3.8(f)(1) and Wis. Stat. § 971.23(1)(h) (2007-

08),1 made actionable via SCR 20:8.4(f).                        We agree with the
referee's     conclusion      that     Attorney   Riek      did    not    violate      the

aforementioned rules.           Accordingly, the complaint is dismissed.


      1
       All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
                                                                             No.    2011AP1049-D



        ¶2    Attorney       Riek    is    an     assistant      district          attorney    in

Racine County.            She was licensed to practice law in Wisconsin in

1986.        In    1999     Attorney      Riek       accepted    a    consensual       private

reprimand for failing to correct a false statement made to a

court by her witness.              Private Reprimand, No. 1999-25.

       ¶3     This    disciplinary         matter       stems    from    Attorney       Riek's

allegedly         belated    disclosure         of    certain    information          obtained

during the prosecution of Tyrone Smith (Smith).

       ¶4     On August 18, 2008, Smith was arrested for possession

of marijuana discovered in his vehicle during a traffic stop.

At the time, Smith was on extended supervision for possession

with intent to deliver cocaine.                      Isaiah Simpson (Simpson) was a

passenger in the vehicle during the stop.

       ¶5     On     August     19,       2008,       the   Racine      County        district

attorney's office charged Smith with possession of marijuana as

a repeat offender.              Attorney         Riek    was    assigned       to    prosecute

Smith's case.         Smith's supervising agent, Agent Leah Zeni, began

proceedings to revoke Smith's extended supervision.                                   Attorney
Mark    Lukoff       was    appointed       to       represent       Smith     in    both     the

revocation proceeding and the marijuana possession case.
       ¶6     On    August     22,     2008,      Simpson,      the    passenger       in     the

vehicle, informed Agent Zeni that the marijuana found in the
vehicle belonged to him, not to Smith.                         Agent Zeni told Simpson

to     report      this     information         to    the   Racine      County        district
attorney's         office    and     advised         Attorney    Lukoff        of    Simpson's

confession.


                                                 2
                                                                               No.    2011AP1049-D



        ¶7     Meanwhile,       on     September         4,    2008,     the    circuit         court

held a preliminary hearing in Smith's marijuana possession case.

After        that    hearing,        Smith's     attorney             filed    a     demand       for

discovery       and    inspection       with       the    court        and    served       it    upon

Attorney Riek.              The discovery demand included a routine demand

that     the        State     "[d]isclose        to      defendant            any    exculpatory

evidence."          See Wis. Stat. § 971.23(1)(h).

        ¶8     Attorney Lukoff received a copy of Simpson's statement

to Agent Zeni before Smith's revocation proceeding.                                   At Smith's

revocation          hearing    on    October       15,        2008,    Agent        Zeni   entered

Simpson's confession into evidence.                       Smith based his defense at

the revocation hearing on Simpson's confession.

       ¶9      On     October    27,     2008,      the        administrative         law       judge

(ALJ) declined to revoke Smith's extended supervision, stating,

"Based on Mr. Simpson's statement, I find insufficient credible

evidence to attribute the marijuana to Mr. Smith."

       ¶10     Agent Zeni appealed the ALJ's decision, stating, inter
alia:

       [A]fter providing his statement, [Isaiah] Simpson was
       instructed by this agent to go to the Racine District
       Attorney's office and provide a signed affidavit
       admitting the marijuana in the vehicle was his.    At
       the time of the Final Revocation hearing, Mr. Simpson
       failed to go to the Racine District Attorney's
       office . . . .
The Division of Hearing and Appeals sustained the ALJ's decision

on   November        13,     2008,    noting   that           "[i]t    is     also    clear     that

Smith's       friend,       [Isaiah]    Simpson,         brought        the    marijuana         into

Smith's car."


                                               3
                                                                  No.   2011AP1049-D



     ¶11    In early November 2008, Simpson did go to the Racine

County district attorney's Office where he met with District

Attorney Michael E. Nieskes (D.A. Nieskes) and informed D.A.

Nieskes that the marijuana found in Smith's vehicle belonged to

him, not to Smith.        As a result of that November meeting, D.A.

Nieskes wrote a note (the Simpson Note) that stated, "[Isaiah]

Simpson 1010 Park Ave 637-9029 states that the dope is his not

Tyrone [Smith's]."

     ¶12    The Simpson Note was not a sworn statement.                     It was

unsigned and undated.         Later that morning, D.A. Nieskes told

Attorney Riek about his meeting with Simpson and gave her the

Simpson Note.        Attorney Riek recalls being advised of Simpson's

statement to D.A. Nieskes but she does not recall receiving the

Simpson Note.

     ¶13    On November 7, 2008, Attorney Riek asked the Racine

County sheriff's department to investigate Simpson's statement

that the marijuana belonged to him.              The Racine County sheriff's

department had difficulty contacting Simpson.
     ¶14    Meanwhile, Attorney Lukoff's own investigator was also

trying to contact Simpson.           In January 2009 Attorney Lukoff's
investigator spoke with Simpson.            Simpson told Attorney Lukoff's

investigator that the marijuana was his, not Smith's.
     ¶15    On   February   5,    2009,     Attorney    Lukoff     sent   Attorney

Riek a     witness    list that    included      Simpson.     Attorney        Lukoff
enclosed    Simpson's    written    statement      to    Agent     Zeni   and   the

defense    investigator's     summary       of   the    January     meeting     with

Simpson.
                                        4
                                                              No.    2011AP1049-D



        ¶16    On March 26, 2009, Attorney Lukoff personally met with

Simpson in preparation for Smith's trial.               During this meeting,

Attorney Lukoff learned, for the first time, that Simpson had

met with D.A. Nieskes.           Attorney Lukoff promptly sent a letter

to   Attorney     Riek,    by   facsimile,    asking    for   a   copy    of    any

information Simpson provided to D.A. Nieskes.

        ¶17    The next day, March 27, 2009, now four days before

Smith's trial, Attorney Riek sent Attorney Lukoff a copy of the

Simpson Note.        Her cover letter included the statement that,

"[a]s I indicated to you earlier today, based upon this note, I

sent a request to the Racine County Sheriff's Department to have

them follow up on this information and Isaiah Simpson declined

to cooperate and provide a statement."             Attorney Riek later told

the OLR that she found the Simpson Note among unrelated papers

on her desk on or about March 26, 2009.

        ¶18    Smith's trial was scheduled to commence on March 31,

2009.        When Simpson arrived for the trial that day, Attorney

Riek    directed     a    law   enforcement   officer    to   interview        him.
Simpson again admitted the marijuana was his, not Smith's.

       ¶19     Attorney Riek then moved to dismiss Smith's case.               The
criminal charges against Smith were dismissed on March 31, 2009,

prior to the commencement of trial.
       ¶20     On May 9, 2011, the OLR filed a disciplinary complaint

against       Attorney   Riek   alleging    that   by   failing     to   promptly
provide the defense with exculpatory information concerning a

third party's admission of possessing marijuana that Smith was

charged with possessing, Attorney Riek violated SCR 20:3.8(f)(1)
                                        5
                                                                            No.     2011AP1049-D



and Wis.        Stat. § 971.23(1)(h),                enforceable    via      SCR 20:8.4(f).

The OLR sought a public reprimand and imposition of costs.

        ¶21    Referee     Michael         Dubis      was    appointed       and     discovery

ensued.       Both parties moved for summary judgment.

        ¶22    On     August   6,     2012,       Referee     Dubis    issued        a   report

recommending summary judgment in favor of Attorney Riek.                                     The

referee       found    that    the    exculpatory           information      at     issue    was

already       in    possession       of    the    defense      at   least     as     early    as

October 15, 2008, the date of Smith's revocation hearing, some

five months prior to trial.                      Notably, the referee determined

that     a     prosecutor's         ethical       duty      under     SCR     20:3.8(f)       is

consistent with the constitutional requirements imposed pursuant

to Brady v. Maryland, 373 U.S. 83 (1963).                           The referee stated

that SCR 20:3.8 "must include Brady's materiality standard.                                  To

hold    otherwise       would    be       to     require     disclosure       of     favorable

evidence without regard to that evidence's significance and no

matter how many times the defense has already heard/received the

same."        The referee concluded that Attorney Riek did not violate

either        SCR 20:3.8(f)(1)            or     Wis.     Stat.     § 971.23(1)(h)           and

recommended this court dismiss the disciplinary complaint.

        ¶23    The OLR appeals.            The OLR maintains that Attorney Riek

violated two separate legal standards, SCR 20:3.8(f)(1) and Wis.

Stat.    § 971.23(1)(h).              The      OLR      challenges,     on        appeal,    the




                                                 6
                                                                                No.        2011AP1049-D



referee's interpretation of SCR 20:3.8(f)(1).                                 Oral argument was

conducted on February 26, 2013.2

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

they       are   clearly       erroneous.          In      re    Disciplinary         Proceedings

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

747.       We review a referee's conclusions of law de novo.                                 Id.

       ¶25       We    first      consider        whether         Attorney         Riek      violated

SCR 20:3.8(f)(1).                 This    inquiry       requires         us   to    consider       the

nature and scope of prosecutors' disclosure obligations under

both constitutional and ethical standards.

       ¶26       Federal court decisions and decisions of this court

establish constitutional minimums related to a prosecutor's pre-

trial disclosure obligations.                     In Brady the U.S. Supreme Court
held       "that      the    suppression      by        the      prosecution          of     evidence

favorable        to    an    accused . . . violates                due    process          where   the

evidence         is     material         either       to    guilt        or    to     punishment,

irrespective of the good faith or bad faith of the prosecution."

373 U.S. at 87.               Subsequent decisions clarify that evidence is

"material . . . if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different."                            United States v. Bagley,

473    U.S.      667,       682   (1985).         Thus,         simply    "showing          that   the

prosecution knew of an item of favorable evidence unknown to the

       2
       After oral argument the Wisconsin District Attorneys
Association filed a motion seeking permission to file an amicus
brief supporting Attorney Riek.    The OLR opposed the motion
because it was untimely.   By order dated March 12, 2013, this
court denied the motion.

                                                  7
                                                               No.      2011AP1049-D



defense does not amount to a Brady violation, without more."

Kyles v. Whitley, 514 U.S. 419, 437 (1995); see also Bagley, 473

U.S. at 675 n.7 ("[A] rule that the prosecutor commits error by

any failure to disclose evidence favorable to the accused, no

matter how insignificant, would impose an impossible burden on

the prosecutor and would undermine the interest in the finality

of judgments.").

      ¶27    Attorney        Riek       is       accused      of         violating

SCR 20:3.8(f)(1), an ethics rule, which provides:

           A prosecutor, other than a municipal prosecutor,
      in a criminal case or a proceeding that could result
      in the deprivation of liberty shall:

           (1) make timely disclosure to the defense of all
      evidence or information known to the prosecutor that
      tends to negate the guilt of the accused or mitigates
      the offense, and, in connection with sentencing,
      disclose to the defense and to the tribunal all
      unprivileged mitigating information known to the
      prosecutor, except when the prosecutor is relieved of
      this responsibility by a protective order of the
      tribunal; . . . .
The   parties      agree    that    because   SCR    20:3.8(f)(1)         includes

evidence and information, disclosure under SCR 20:3.8(f)(1) does
not depend on the admissibility of the exculpatory information.

      ¶28    The OLR contends that a prosecutor's ethical duty of
disclosure      under      SCR     20:3.8(f)(1)     is     broader      than    the

constitutional      requirements       identified    in     Brady.        The   OLR
contends     SCR   20:3.8(f)(1)       requires    disclosure       of    favorable

evidence or information without regard to its "materiality" or

to whether the State had exclusive possession or control of the

evidence or information.

                                        8
                                                                             No.        2011AP1049-D



        ¶29      We    reject     the    OLR's         proffered      interpretation             of

SCR 20:3.8(f)(1).               This court adopted the current version of

SCR 20:3.8(f) in 2006 as part of a comprehensive review of the

Wisconsin Rules of Professional Conduct for Attorneys.                                    See Sup.

Ct.   Order       No.    04-07,    2007       WI       4   (issued    Jan.    5,    2007,        eff.

July 1, 2007).3           We discussed proposed changes to SCR 20:3.8 at

several public hearings and open conferences prior to our 2006

rules revision.            The ABA adopted numerous changes to the Model

Rules       as    a     result    of     Ethics            2000;   however,        it     made    no

substantive changes to the text of the Model Rule implicated

here, Model Rule 3.8(d), that correlates with our SCR 20:3.8(f).

Indeed, during Ethics 2000 the ABA expressly "decided against

attempting        to    explicate       the    relationship          between       [Model        Rule

3.8(d)] . . . and           the    prosecutor's              constitutional         obligations

under Brady and its progeny."                          See Kirsten M. Schimpff, Rule
3.8, The Jencks Act, and How the ABA Created a Conflict Between

Ethics and The Law on Prosecutorial Disclosure, 61 Am. U. L.

Rev. 1729, 1756 (August, 2012) (citing Margaret Colgate Love,

The Revised ABA Model Rules of Professional Conduct: Summary of

the   Work       of    Ethics    2000,    15       Geo.      J.    Legal   Ethics        441,     469

(2002)).
        3
       The proposal to revise Wisconsin's Rules of Professional
Conduct for Attorneys had its origins in the American Bar
Association's (ABA) Commission on Evaluation of the Rules of
Professional Conduct, which undertook a comprehensive study and
evaluation of the ABA Model Rules of Professional Conduct,
commonly referred to as "Ethics 2000." Subsequently, most
states, including Wisconsin, undertook a review of their own
rules of professional conduct to determine whether similar
revisions should be made.

                                                   9
                                                                        No.    2011AP1049-D



        ¶30    In 2009 the ABA's Standing Committee on Legal Ethics

and Professional Responsibility rendered Formal Opinion 09-454

(hereinafter "ABA Opinion").                This ABA Opinion, issued after we

adopted SCR 20:3.8, asserts that a prosecutor's ethical duty

under     Model       Rule      3.8(d)     is     broader       in    scope     than    the

constitutional requirements under Brady.                         ABA Comm. on Legal

Ethics & Prof'l Responsibility, Formal Op. 09-454 (2009) at 1.

The ABA Opinion contends that the ethical obligation imposed by

Rule     3.8    is    more     demanding        than     constitutional       obligations

because        it    requires     disclosure        of    evidence      or    information

favorable       to    the    defense      without      regard    to    the    anticipated

impact of the evidence or information on a trial's outcome.

       ¶31     As to materiality, the ABA Opinion notes:

       A prosecutor's constitutional obligation extends only
       to favorable information that is "material," i.e.,
       evidence and information likely to lead to an
       acquittal.   . . .   Rule 3.8(d) does not implicitly
       include the materiality limitation recognized in the
       constitutional   case   law.       The rule   requires
       prosecutors to disclose favorable evidence so that the
       defense can decide on its utility.
Id. at 2 (footnote omitted).                The ABA Opinion also declares that

disclosure must be made "as soon as reasonably practical" once

the information is known to the prosecutor.                      Id. at 6.

        ¶32    The    OLR    urges   us    to     follow    this      reasoning   and    to

explicitly          construe      SCR      20:3.8(f)(1)         to     impose     ethical

obligations on prosecutors that transcend the requirements of

Brady.        The OLR notes that the North Dakota Supreme Court has




                                             10
                                                                          No.   2011AP1049-D



adopted this reasoning.              See Disciplinary Board v. Feland, 820

N.W.2d 672 (N.D. 2012).

      ¶33   The    ABA    Opinion,     however,        has       not    been    universally

adopted; indeed, it has received some pointed criticism.                                 See,

e.g., Schimpff, supra at 1767.                     Some jurisdictions explicitly

align   their      ethics     rules     on        prosecutorial          disclosure      with

federal constitutional standards.                   See, e.g., D.C. Rules Prof'l

Conduct R. 3.8 cmt. 1 (2012) (clarifying that their comparable

ethics rule "is not intended either to restrict or to expand the

obligations       of    prosecutors     derived           from     the     United      States

Constitution,      federal      or    District       of    Columbia        statutes,      and

court rules of procedure."); see also N.C. Rules Prof'l Conduct
3.8(d) (2012) (requiring timely disclosure of "all evidence or

information required to be disclosed by applicable law, rules of

procedure, or court opinions.").

      ¶34   After       the   issuance        of     the     ABA       Opinion,       several

jurisdictions rendered decisions construing their equivalent of

SCR 20:3.8(f) consistent with the requirements of Brady and its

progeny.    See, e.g., Disciplinary Counsel v. Kellogg-Martin, 923

N.E.2d 125 (Ohio 2010); see also In re Jordan, 913 So. 2d 775

(La. 2005); In re Attorney C., 47 P.3d 1167 (Colo. 2002).

      ¶35   We     do     the    same        here.           Adopting           the     OLR's

interpretation would impose inconsistent disclosure obligations

on   prosecutors.         Indeed,      the    ABA     Opinion          describes      several

hypothetical      scenarios     where    a        prosecutor       could    fully      comply

with the constitutional obligations the Court has outlined under


                                             11
                                                                           No.       2011AP1049-D



Brady, but still be in violation of the Model Rule.4                                     Disparate

standards are likely to generate confusion and could too easily

devolve into a trap for the unwary.

       ¶36       Under     conflicting      standards,          prosecutors       would         face

uncertainty as to how to proceed and could face professional

discipline for failing to disclose evidence even when applicable

constitutional            law     does    not    require       disclosure       of       the   same

evidence.           The practical effect——disclosing evidence to avoid

disciplinary         sanctions——could            effectively      expand     the         scope   of

discovery currently required of prosecutors in criminal cases.

See,       e.g.,    Kellogg-Martin,             923    N.E.2d    at   130.           A    broader
interpretation also invites the use of the ethics rule as a

tactical weapon in litigation, contrary to our stated intent in

SCR    Chapter        20    (Preamble,          cmt.    20).      What     better         way    to

interfere          with    law     enforcement         efforts    than     to    threaten         a

prosecutor with a bar complaint?                       See, e.g., Brief for National

District Attorneys Association as Amicus Curiae at 14, Smith v.

Cain,      ___     U.S.     ___,    132    S.     Ct.    627     (2012)    (No.          10-8145).

Prosecutors should not be subjected to disciplinary proceedings

for    complying           with    legal    disclosure          obligations.             We     thus

construe the ethical mandate of SCR 20:3.8(f)(1) in a manner


       4
       For example, the ABA Opinion declares that disclosure must
be made "as soon as reasonably practical" once the information
is known to the prosecutor.     Supreme court rule 20:3.8(f)(1)
requires counsel to "make timely disclosure," which has been
interpreted to mean the disclosure must be made within a
reasonable time before trial. State v. Harris, 2004 WI 64, 272
Wis. 2d 80, 680 N.W.2d 737.

                                                 12
                                                                       No.    2011AP1049-D



consistent with the scope of disclosure required by the United

States Constitution, federal or Wisconsin statutes, and court

rules of procedure.

      ¶37    We turn to the OLR's alternative claim that Attorney

Riek's conduct nonetheless violates SCR 20:3.8(f)(1) because the

information at issue here was material.                      The referee stated:

      By the time the [Simpson] Note was created in early
      November of 2008, the information found in this note
      was cumulative and immaterial as the note contained
      information that was already in possession of the
      defense at least as early as October 15th, 2008, about
      5 months prior to trial.
The OLR objects to this determination, stating:

      First, the plain language of the ethical rule does not
      contain an exception for cumulative evidence. Second,
      it overlooks an additional piece of information at
      issue: that Simpson had made a confession to the
      District Attorney himself.     It was this piece of
      information which made District Attorney Nieskes a
      potential witness in the criminal case against Smith,
      and needed to be disclosed. (Emphasis in original.)
      ¶38    The    OLR    is     correct    that      SCR    20:3.8(f)(1)     does   not

contain an explicit exception for cumulative evidence.                          However,

the   referee's      determination        that    Simpson's       statement     to    D.A.

Nieskes was cumulative is relevant to assessing its materiality.

Simpson     repeated       his    confession      to    at     least   five    different

people during the course of the Smith criminal proceeding.                            The

referee thus determined that the statement to D.A. Nieskes was

not material to the outcome of Smith's proceeding.                       We agree.

      ¶39    Evidence is material only if there is a reasonable

probability        that,    had     the     evidence     been     disclosed      to   the

defense, the result of the proceeding would have been different.

                                             13
                                                                           No.        2011AP1049-D



Bagley,       473    U.S.    at       682.      A     "reasonable    probability"            is    a

probability sufficient to undermine confidence in the outcome.

Id.   We have stated:

      [With this test,] the reviewing court may consider
      directly any adverse effect that the prosecutor's
      failure to respond might have had on the preparation
      or presentation of the defendant's case.           The
      reviewing court should assess the possibility that
      such effect might have occurred in light of the
      totality of the circumstances and with an awareness of
      the difficulty of reconstructing in a post-trial
      proceeding the course that the defense and the trial
      would have taken had the defense not been misled by
      the prosecutor's incomplete response.
State v. Harris, 2004 WI 64, ¶14, 272 Wis. 2d 80, 680 N.W.2d 737

(quoting Bagley, 473 U.S. at 683).

        ¶40     The OLR emphasizes the fact that the confession at

issue     was       made    to    a    district        attorney.         Under        the    facts

presented, we deem this a distinction without a difference.                                      The

defense       was     already         well   aware        that     Simpson       claimed         the

marijuana as his own.                  Some five months previously, in October

2008, an ALJ had declined to revoke Smith's extended supervision
based in large part on Simpson's confession.                              We perceive no

material significance in the fact that he included a district

attorney among the various persons to whom he freely admitted

ownership of the marijuana.

      ¶41      Nor do we perceive any adverse impact on the defense.

The   OLR     also     offers     a     rather      tortured     scenario        in    which      it

posits    that       if    Attorney      Riek       had   failed    to   disclose           to   the

defense the fact of Simpson's confession to D.A. Nieskes there

might have been an adverse result for Smith if Simpson or other

                                                 14
                                                                 No.    2011AP1049-D



defense witnesses to whom Simpson confessed failed to appear for

trial.      The reality, however, is that before trial, Attorney

Riek did disclose to the defense the Simpson Note and confession

to   D.A.   Nieskes.      Simpson        did    appear    at   trial,    whereupon

Attorney Riek directed her investigator to question him.                        Upon

receiving        confirmation       that        Simpson        still      accepted

responsibility      for   the    marijuana,       Attorney     Riek     moved    for

dismissal of the charges against Smith.                  On these facts, there

is no evidence of record that Smith was adversely affected by

any arguable delay in disclosing one of several substantively

identical confessions to the defense four days in advance of

trial.      We   therefore      accept    the    referee's     conclusion       that

Attorney Riek did not violate SCR 20:3.8(f)(1).

      ¶42   The OLR also accuses Attorney Riek of violating a rule

of   criminal    procedure   that   imposes       disclosure     obligations      on

prosecutors.      Wisconsin Stat. § 971.23(1)(h) is entitled, "What

A District Attorney Must Disclose To A Defendant" and provides:

           Upon demand, the district attorney shall, within
      a reasonable time before trial, disclose to the
      defendant or his or her attorney and permit the
      defendant or his or her attorney to inspect and copy
      or photograph all of the following materials and
      information, if it is within the possession, custody
      or control of the state:

            . . .

            (h) Any exculpatory evidence.
It is professional misconduct for a lawyer to violate a statute

regulating the conduct of lawyers.             SCR 20:8.4(f).



                                         15
                                                                         No.     2011AP1049-D



        ¶43   Wisconsin Stat. § 971.23(1)(h) requires prosecutors to

disclose      information         within    the    State's         possession    "within    a

reasonable time before trial."                    This is defined to mean that a

prosecutor       must       disclose        exculpatory            evidence     "within     a

sufficient      time      for     its     effective         use."      See     Harris,    272

Wis. 2d 80, ¶37.           The question is not whether it would have been

prudent or preferable for Attorney Riek to have disclosed the

statement to D.A. Nieskes sooner.                      The question is whether she

violated      the       statute    by     disclosing         the    information     to    the

defense four days before a trial that never occurred.

       ¶44    The record is devoid of evidence that Attorney Riek's

alleged delay in producing the Simpson Note and disclosing the

fact of Simpson's discussion with D.A. Nieskes was intentional

or done for any strategic purpose.                          Mindful of the voluminous

caseloads managed by most prosecutors, we are unwilling to rule

that     Attorney        Riek's     disclosure         of    essentially        duplicative

information      four      days     in     advance      of     an    apparently     routine

marijuana       possession         case     ran     afoul      of     her      ethical    and

procedural obligations as a prosecutor.
       ¶45    We note, moreover, that even where a prosecutor does

fail to disclose exculpatory evidence in violation of Brady, a
single inadvertent failure does not necessarily constitute an

ethical violation.              Negligence and ethical misconduct are not

necessarily synonymous.                 Most courts and official ABA policy

agree    that       a    single    instance       of    "ordinary       negligence"       may

trigger other adverse consequences and possible sanctions but

does not usually constitute a disciplinary violation warranting
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public discipline.       See, e.g., In re Conduct of Gygi, 541 P.2d

1392, 1396 (Or. 1975) (stating "we are not prepared to hold that

isolated instances of ordinary negligence are alone sufficient

to warrant disciplinary action."); Attorney Grievance Comm'n of

Maryland v. Kemp, 641 A.2d 510, 518 (1994) ("While we do not

condone, and certainly do not encourage, attorney negligence or

carelessness in the handling of client affairs, neither do we

routinely treat negligence or carelessness as a violation of the

Rules of Professional Conduct.").        Prosecutors should certainly

be mindful of their disclosure obligations, but the possibility

of a grievance proceeding should not permeate every discovery

dispute in criminal cases.      See Attorney C., 47 P.3d at 1173-74.
     ¶46   We   accept    the   referee's      conclusion    that     Attorney

Riek's conduct did not violate SCR 20:3.8(f)(1) or Wis. Stat.

§ 971.23(1)(h),   made     actionable    via    SCR   20:8.4(f),       and   we

dismiss the complaint.

     ¶47   IT IS ORDERED that the disciplinary complaint filed

against Attorney Sharon A. Riek is dismissed.          No costs.




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