Court: Wisconsin Supreme Court; October 14, 2010; Wisconsin; State Supreme Court
The Office of Lawyer Regulation (OLR) has appealed a referee's report that found insufficient evidence to support that Attorney Frederick E. Kessler violated SCR 20:8.4(a) and (c). The appeal raises three main issues: whether SCR 20:8.4(c) necessitates that a deceptive statement be used to defraud for it to be actionable; whether Kessler's deceptive statement is protected under the First Amendment; and what discipline would be appropriate if a violation were established. The court affirms the referee's factual findings but disagrees with the legal conclusion that a deceptive statement must be used to defraud in order to constitute misconduct under SCR 20:8.4(c). Despite this disagreement, the court agrees with the referee that the OLR did not meet its burden of proof, leading to the dismissal of the proceedings.
Attorney Kessler, a member of the Wisconsin legislature and practicing law since 1966, was involved in the spring 2004 election for the District I Court of Appeals, where his wife, Joan Kessler, ran against incumbent Judge Charles Schudson. The context includes a letter written by Judge Schudson recommending leniency in the sentencing of Attorney Charles Hausmann, which Kessler believed might violate SCR 60.03(2). He asked his wife to obtain the letter, thinking it could benefit her campaign if Schudson were disciplined. Joan Kessler accessed the letter and related information through a colleague using the PACER system.
On October 25, 2003, Attorney Kessler spoke with Mary Moser, the widow of former Judge William Moser, at his memorial service. Mrs. Moser, a supporter of Kessler's campaign, had previously expressed her willingness to assist the campaign. Following the service, Kessler invited her to lunch to discuss filing a complaint against Judge Schudson with the Wisconsin Judicial Commission regarding a letter he wrote on behalf of Attorney Hausmann. On October 27, Kessler called to arrange the meeting, and they met on October 28 at a Milwaukee restaurant.
During this lunch, Kessler provided Mrs. Moser with the Schudson letter, relevant case documentation, portions of the judicial code, and a draft complaint letter. Kessler alleged that Judge Schudson had breached the judicial code and encouraged Mrs. Moser to file the complaint, while also suggesting she could claim to have learned about the letter from a cocktail party, given its public record status.
Initially hesitant, Mrs. Moser decided to proceed after consulting with family and a friend associated with the Judicial Commission. She revised the draft and submitted the complaint, which was formally acknowledged by the Judicial Commission to Judge Schudson on January 23, 2004. Schudson admitted to the violation and apologized three days later.
On March 8, 2004, the Milwaukee Journal Sentinel reported on the complaint, despite its confidentiality under Wisconsin Statutes. In the lead-up to the April 6 election for the District I Court of Appeals, Kessler's campaign advertised the ongoing investigation into Schudson's alleged judicial misconduct. Kessler won the election.
The complaint was ultimately dismissed on June 26, 2004, with the Judicial Commission issuing a warning to Schudson. After the election, Mrs. Moser was approached by a special investigator looking into a grievance filed by Schudson against Kessler. Upon contacting Kessler about this, she was advised to be truthful.
On April 4, 2008, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Kessler for two counts of misconduct. The first count accused Kessler of inducing Mrs. Moser to file a complaint with the Judicial Commission to conceal his involvement and advising her to falsely claim she learned about the issue at a cocktail party, violating SCR 20:8.4(a) and (c). The second count, which also alleged violations of SCR 20:8.4(a) and (c), stemmed from an email invitation to a fundraiser sent by Kessler's campaign, and a letter from individuals claiming her campaign website improperly solicited funds. This count was later dismissed by stipulation.
Jonathan V. Goodman served as the referee for the case, conducting a hearing on August 19, 2009, and issuing a report on September 16, 2009. The referee found that Kessler's advice to Mrs. Moser was deceptive but did not constitute dishonesty or misrepresentation, as there was no evidence it was used to defraud anyone. Consequently, Count One was recommended for dismissal.
The OLR appealed, asserting that Kessler's instruction to Mrs. Moser to lie was a violation of SCR 20:8.4(a) and (c). The appeal did not contest the factual findings but challenged the referee’s legal conclusion regarding the necessity of proving that Kessler’s statement was acted upon by a third party for it to be actionable. The OLR contended that the referee incorrectly added this requirement, which is not present in the rule’s language or its interpretations. The OLR seeks a reversal of the referee's conclusion that Kessler did not violate the rule.
Attorney Kessler contends that the referee appropriately recommended the dismissal of Count One of the Office of Lawyer Regulation's (OLR) complaint, arguing that there was no evidence of dishonesty, fraud, deceit, or misrepresentation as defined by SCR 20:8.4(c). He acknowledges that while SCR 20:8.4(c) serves as a broad rule beyond the practice of law, it does not apply to all statements made by an attorney in all aspects of life. Kessler maintains that describing a lunch with Mrs. Moser as a "cocktail party," though inaccurate, did not constitute a violation of the rule, asserting that such comments serve as innocuous deflections to avoid uncomfortable questions.
Kessler further argues that his anonymous participation in a legitimate complaint against Judge Schudson is protected under the First Amendment, citing Supreme Court precedents that emphasize the high level of protection for criticism of public officials and the importance of anonymity in encouraging such discourse.
The OLR counters that the First Amendment does not protect false statements, asserting that if Kessler's comment to Mrs. Moser is interpreted as a suggestion to lie, it would not be shielded by constitutional protections.
The referee's factual findings are upheld as not clearly erroneous, but there is disagreement regarding the legal interpretation that a deceptive statement must result in actual fraud to constitute misconduct under SCR 20:8.4(c). The conclusion that the OLR did not meet its burden in proving a violation by Kessler is agreed upon, despite the lack of support for the referee's conclusion regarding the necessity of actual fraud in cases of deceit. The reference to the State v. Dalton case is noted, where the court addressed deceit in a different context, emphasizing that deceit implies the victim's unawareness of being misled.
The court of appeals noted that limiting deceit to express or implied misrepresentations fails to protect victims deceived without such misrepresentations. However, this definition of deceit pertains to a criminal statute and does not apply here. The rules under SCR 20:8.4(c) do not require that a deceitful statement must actually defraud someone for a violation to be found. The referee's interpretation that Attorney Kessler's 'cocktail party' comment did not violate SCR 20:8.4(c) is agreed upon, as Kessler's statement did not contain a misrepresentation. Kessler merely suggested that Mrs. Moser make a misrepresentation if asked about the Schudson letter, but there is no evidence that she ever faced such a question or made any false statement. The requirement for a violation under SCR 20:8.4(c) is a dishonest statement or misrepresentation, which did not occur in this case. Since the Office of Lawyer Regulation (OLR) did not establish a violation, the court did not address Kessler's First Amendment argument. The court clarified that its ruling should not be seen as endorsing Kessler's behavior, stating that suggesting dishonesty is not commendable and that Kessler could have better advised Mrs. Moser on how to respond to inquiries about the source of her knowledge.
The disciplinary proceeding against Frederick E. Kessler has been dismissed without costs, as per SCR 20:8.4(a) and (c), which define professional misconduct for lawyers, including violations of the Rules of Professional Conduct and engaging in dishonest conduct. The decision is published due to the involvement of Kessler's spouse, Joan F. Kessler, a sitting judge, in a judicial campaign, necessitating a full explanation of the ruling. SCR 60.03(2) prohibits judges from allowing personal relationships to affect their judicial conduct and from using their judicial position to advance personal interests. Evidence in the case includes a statement from Mrs. Moser, who did not testify at the hearing, and a reference to a 'cocktail party' mentioned in response to a leading question by an investigator. Kessler lacks specific recollection of this comment but does not believe Mrs. Moser would testify falsely. Wisconsin Stat. 757.93 outlines confidentiality in proceedings related to judicial misconduct, indicating that such proceedings are confidential unless confidentiality is waived. The statute also allows for public statements concerning the investigation's status and the right to a fair hearing, while subsequent formal complaints and hearings are public.
The section allows the commission to refer information regarding judicial delays or disabilities, potential criminal conduct, attorney misconduct, and matters affecting court administration to appropriate authorities at its discretion. An attorney disciplinary complaint was filed against Joan Kessler, alleging she made false statements to an investigator about her and her campaign's involvement in filing a complaint against Judge Schudson and about the source of a leak regarding that complaint. The proceedings against Kessler are being addressed separately. According to SCR 60.06(4), judges and judicial candidates cannot personally solicit campaign contributions but may create a committee for this purpose, which can accept contributions from lawyers and others involved in cases they may adjudicate. While Kessler's statements were scrutinized, the Office of Lawyer Regulation (OLR) did not allege any misrepresentation of other statements made to Mrs. Moser nor any ethical violations related to Kessler soliciting the complaint. Although Kessler's actions of using a third party for political reasons were criticized, they did not constitute an ethical violation according to the OLR.
