In The Matter Of Disciplinary Proceedings v. Brown

• Decision Date: 18 August 2010
• Docket Number: No. 2009AP1678-D.,2009AP1678-D.
• Citation: 787 N.W.2d 800,2010 WI 104
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Carol J. BROWN, Attorney at Law:Office of Lawyer Regulation, Complainant,v.Carol J. Brown, Respondent.
• Court: Wisconsin Supreme Court

787 N.W.2d 800

2010 WI 104

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Carol J. BROWN, Attorney at Law:Office of Lawyer Regulation, Complainant,v.Carol J. Brown, Respondent.

No. 2009AP1678-D.

Supreme Court of Wisconsin.

Decided Aug. 18, 2010.

PER CURIAM.

ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

We review the report and recommendation of the referee, the Honorable Timothy L. Vocke, that Attorney Carol J. Brown receive a public reprimand, pay restitution, and bear the full costs of this proceeding. No appeal has been filed so we review the referee's report and recommendation pursuant to SCR 22.17(2).¹ A referee's findings of fact will not be overturned unless clearly erroneous. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis.2d 662, 636 N.W.2d 718. We independently review the referee's legal conclusions. Id.

¶ 2 We approve and adopt the referee's findings of fact and conclusions of law. We agree that Attorney Brown's professional misconduct warrants a public reprimand, and we find it appropriate to require Attorney Brown to pay restitution and the costs of this disciplinary proceeding as set forth herein.

¶ 3 Attorney Brown (formerly known as Carol Brown Biermierer) was admitted to the practice of law in Wisconsin in 1993. She has not previously been disciplined. During the events relevant to this proceeding, she practiced in Madison with the law firm Brown & La Counte, LLP (“the Firm”), specializing in legal matters affecting Native American tribes and their members.

¶ 4 The Office of Lawyer Regulation (OLR) filed a disciplinary complaint against Attorney Brown on July 3, 2009, alleging seven counts of professional misconduct. All of the allegations of misconduct relate to the Firm and Attorney Brown's representation of the Saginaw Chippewa Indian Tribe of Michigan, a federally recognized Indian tribe (“the Tribe”). Attorney Brown was lead counsel for the Firm's representation related to the Tribe. Attorney Brown filed an answer to the OLR's complaint, but the parties then entered into a stipulation whereby Attorney Brown withdrew her answer and pled no contest to the allegations set forth in the complaint pursuant to SCR 22.14(2). A hearing was held before the referee on March 4, 2010. The referee accepted the stipulation and issued his report and recommendation on March 15, 2010.

¶ 5 We begin our discussion by noting the referee observed that many “of the problems that Attorney Brown got into in this case were as a direct result of the contentiousness between various interests in the tribe and the instability of the tribal government.” The referee explicitly considered this a mitigating factor. While this does not excuse misconduct, it does inform our review of this proceeding. The parties have stipulated to the facts set forth in the complaint, so we will merely summarize the complex factual basis underlying this proceeding.

¶ 6 In March 1998 the Firm entered into a written contract with the Tribe for legal services (“the Contract”). The Contract was signed by Attorney Brown on behalf of the Firm. The Contract stated the Firm agreed to represent the Tribe, and not the then-serving governing council, its members, or any particular persons within the Tribe. The Tribe's constitution required the Tribe to submit the Contract to the Bureau of Indian Affairs (“BIA”) for approval. BIA refused to approve the Contract, requesting inclusion of specific language relating to fees and costs to be billed by the Firm. In March 1999 the Firm prepared and executed a revised contract which was provided to the Tribe. The Tribe filed the revised Contract with BIA in August 1999. However, a new governing council took control of the Tribe's government, and the Tribe then requested that BIA not approve the revised Contract. The revised Contract was never approved by BIA.

¶ 7 At the time the Firm was retained by the Tribe, there was controversy within the Tribe as to whether all of the persons listed on the Tribe's membership rolls were proper members of the Tribe. There also ensued a series of disputes about election results. There was disagreement as to whether then-serving members of the Tribe's governing council (“the Chamberlain Council”) and then-serving Chief Kevin Chamberlain were legitimately elected representatives of the Tribe. Between 1996 and 1999, the Tribe experienced a series of elections, election protests, and subsequent invalidation of election results by the Chamberlain Council.² Between November 1997 and August 1999, the members of the Chamberlain Council continued to hold office as a “holdover” government, instead of turning over the reins of the Tribe's government to the persons elected in the invalidated elections.

¶ 8 Eventually, several tribal members filed suit in tribal court Peters, Durfee v. Chamberlain, et al., Case No. 98-CI-361. The tribal court held that the Chamberlain Council had the power to void the election results, but ordered the Chamberlain Council to develop a plan to allow the Tribe to hold a valid election. Following this decision, tribal members began actively seeking intervention from Kevin Gover (“Gover”), then-Assistant Secretary of the Interior. Gover urged the Chamberlain Council to hold elections for a properly elected council. Ultimately, the Chamberlain Council failed to hold elections in the time and manner required by Gover. Gover then directed his subordinates to withdraw federal recognition of all but two members of the Chamberlain Council. Gover recognized an “Interim Council” which included Interim Chief Peters and two persons who had served as members of the Chamberlain Council. The Interim Council took control of the government of the Tribe.

¶ 9 On August 11, 1999, Interim Chief Peters wrote to Attorney Brown and advised the Firm:

As you no doubt know, a new Saginaw Tribal Council took office yesterday.... [Y]ou currently do not have a valid contract [with the Tribe], and you do not represent the Saginaw Tribal Council or the Saginaw Chippewa Tribe. The Council has voted to rescind the former council's approval of your contract and its request for Bureau approval. Therefore, effective as of this date you are to cease all work for the Saginaw Tribal Council and the Saginaw Chippewa Tribe and cease holding yourself out as attorneys for either.

¶ 10 In August 1999 the Firm, on behalf of Chamberlain and five of the other deposed Chamberlain Council members, filed an action in the Appellate Court of the Tribe, pursuant to its original jurisdiction, to attempt to block Gover's directive from taking effect and to restore the deposed Chamberlain Council members to power. Chamberlain, et al. v. Peters, et al., Case No. 99-CI-771 (Appellate Court of the Saginaw Chippewa Indian Tribe of Michigan).

¶ 11 On August 16, 1999, the Firm filed an action in the United States District Court for the Eastern District of Michigan, purporting to represent the Tribe, seeking a declaratory judgment and an injunction preventing Gover's decision from taking effect. Saginaw Chippewa Indian Tribe of Michigan v. Gover, et al., Case No. 99-CV-10327, 1999 WL 33266029 (E.D.Mich.). ³

¶ 12 In October and November 1999 the Interim Council held “curative elections,” resulting in the Interim Council members being elected in November 1999 to regular two-year terms. Despite several protests and legal challenges, the Interim Council allowed the certified election results to stand. The newly elected council members (comprised of the same members as the Interim Council, including newly elected Chief Philip Peters, Sr., and two members of the former Chamberlain Council) took the oath of office on December 7, 1999 (“the Peters Council”).

¶ 13 On January 5, 2000, the Appellate Court of the Tribe held that Gover had no legal authority under tribal or federal law to intervene in the Tribe's dispute or to determine the Tribe's government. Chamberlain, et al. v. Peters, et al., 27 ILR 6085. However, the Appellate Court denied the deposed Chamberlain Council members any relief based on that judgment, in part because of the deposed members' own illegal actions in holding over beyond their terms and in part because the Peters Council members had been validly elected in November 1999, took the oath of office in December 1999, and thereby formed the legitimate government of the Tribe under tribal law. Id.

¶ 14 On February 11, 2000, the federal district court dismissed the suit pending in that court ( Saginaw Chippewa Indian Tribe of Michigan v. Gover, et al.), finding that the decision of Appellate Court of the Tribe in Chamberlain, et al. v. Peters, et al. deprived the district court of jurisdiction.

¶ 15 The Firm, purporting to act on behalf of the Tribe but acting at the direction of some of the deposed Chamberlain Council members, filed a motion asking the district court to amend the dismissal order to allow the Firm to file a second amended complaint and brief, which the district court also denied. The Firm then filed with the Sixth Circuit Court of Appeals an appeal of the district court's dismissal of the action, again purporting to act on behalf of the Tribe. On July 6, 2000, the appeal was dismissed by stipulation.

¶ 16 Thus, between August 11, 1999, and December 7, 1999, the Firm represented the interests of some of the deposed Chamberlain Council members in actions contrary to the Interim Council's governance of the Tribe. Between December 7, 1999, and July 6, 2000, the Firm represented the interests of some of the deposed Chamberlain Council members in actions contrary to the Peters Council's governance of the Tribe. Ultimately, the referee concluded that:

[B]y representing or causing or allowing her firm to represent the interests of some of the deposed members of the Chamberlain Council in Chamberlain, et al. v. Peters, et al., Case No. 99-CI-771 (Appellate Court of the Saginaw Chippewa Indian Tribe of Michigan), in Saginaw Chippewa Indian Tribe

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