Office of Lawyer Regulation v. Riley (In re Riley)

• Decision Date: 15 July 2016
• Docket Number: No. 2010AP2942–D.,2010AP2942–D.
• Citation: 882 N.W.2d 820,371 Wis.2d 311
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST John Kenyatta RILEY, Attorney at Law. Office of Lawyer Regulation, Complainant–Respondent, v. John Kenyatta Riley, Respondent–Appellant.
• Court: Wisconsin Supreme Court

371 Wis.2d 311

882 N.W.2d 820

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST John Kenyatta RILEY, Attorney at Law.

Office of Lawyer Regulation, Complainant–Respondent,

v.John Kenyatta Riley, Respondent–Appellant.

No. 2010AP2942–D.

Supreme Court of Wisconsin.

Argued Oct. 23, 2012.

Decided July 15, 2016.

For the respondent-appellant, there were briefs filed by Stacie H. Rosenzweig, Halling & Cayo, Milwaukee and Paul R. Erickson, Gutglass, Erickson, Bonville & Larson, SC, Milwaukee. Oral argument by Paul R. Erickson.

For the Office of Lawyer Regulation, there was a brief filed by Matthew J. Price, Foley & Lardner, LLP, Milwaukee and oral argument by Matthew J. Price.

Attorney disciplinary proceeding. Attorney publicly reprimanded.

PATIENCE DRAKE ROGGENSACK

, Chief Justice, ANNETTE KINGSLAND ZIEGLER, J. and MICHAEL J. GABLEMAN, J. ¶ 1 Attorney John Kenyatta Riley appeals from the report of the referee, Attorney Hannah C. Dugan, who concluded that Attorney Riley had violated three Rules of Professional Conduct for Attorneys and recommended that he be publicly reprimanded and that he be required to pay the full costs of this disciplinary proceeding.

¶ 2 After our careful review of this matter and the legal issues it presents, a majority of the court has agreed that Attorney Riley committed professional misconduct, that he should be publicly reprimanded, and that he should be required to pay the full costs of this disciplinary proceeding, which were $16,961.70 as of November 6, 2012. This is, therefore, the mandate of the court. A majority of the court, however, does not agree as to a single rationale for reaching that result. Three justices, Chief Justice Roggensack, Justice Ziegler, and Justice Gableman, agree with the reasoning set forth in this lead opinion. Justice Abrahamson and Justice Ann Walsh Bradley concur in the mandate, but do not join this opinion.¹ Each of them sets forth her views in a concurring opinion. Justice Prosser dissents.²

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Attorney Riley was admitted to the practice of law in Wisconsin in May 1996. He has been the subject of professional discipline on one prior occasion. In 2009 Attorney Riley consented to the imposition of a private reprimand for violating SCRs 20:1.3 (lack of diligence) and 20:1.4(b) (failure to explain a legal matter to a client). He currently practices in Milwaukee with the law firm of Eisenberg, Riley and Zimmerman, S.C.

¶ 4 This case involves the intersection of the careers of two attorneys, Attorney Riley and Attorney Brian K. Polk. An understanding of Attorney Polk's employment history is necessary to an understanding of the charges of professional misconduct against Attorney Riley.

A. Attorney Polk's Employment History and Reinstatement Proceeding

¶ 5 From July 1997 until June 2000, Attorney Polk worked as an associate attorney for the law firm of Eisenberg, Weigel, Carlson, Blau, Reitz & Clemens, S.C. (Eisenberg, Weigel)³ doing “intake” work for personal injury cases. He ended his employment with that firm because he claims he became disillusioned with the lack of opportunities to do more substantive legal work. After leaving the Eisenberg, Weigel firm, Attorney Polk was unemployed for a while and failed to comply with his continuing legal education (CLE) reporting requirement. His license was administratively suspended for that reason in June 2001.

¶ 6 Over the next several years, Attorney Polk held a number of different non-legal jobs. Although his license to practice law in Wisconsin remained administratively suspended, at some point in the fall of 2005 Attorney Polk began to work for a new law firm⁴ that Attorney Alvin Eisenberg had founded after the breakup of the Eisenberg, Weigel firm.⁵ Attorney Polk was made part of the personal injury “team” that was led by Attorney Eisenberg. He solicited individuals to become personal injury clients of the firm, he met with and gave legal advice to clients about their claims, he did property damage settlements, and he corresponded with third parties using firm letterhead and identifying himself in the signature block as an “attorney at law.” During the time that Attorney Polk worked for the new Eisenberg firm, he spent approximately 50 hours per week or more in the firm's offices. Attorney Polk was given his own office and telephone extension, and his extension was listed on the firm's telephone extension list. Because the firm was reluctant to use Attorney Polk's real name over its intercom system, for a while the firm used the pseudonym “James Pearson” for Attorney Polk when paging him over the firm's intercom system. Attorney Polk testified in this proceeding that he stopped working for the new Eisenberg firm in the first half of 2006.⁶

¶ 7 Attorney Riley was familiar with Attorney Polk because Attorney Riley also had been an associate attorney at the Eisenberg, Weigel firm during the same time period as Attorney Polk. Attorney Riley moved to a different law firm and then opened his own solo practice. It appears that Attorney Riley also began working as an associate attorney at the new Eisenberg firm in the middle part of 2005, shortly before Attorney Polk began his employment with that firm. During the time when Attorney Polk was also employed by the new Eisenberg firm, Attorney Riley did not have any management responsibilities in that firm. At a later date, he did begin to take on management responsibilities.

¶ 8 In February 2006, while Attorney Polk was still working as an attorney at the new Eisenberg firm, he filed a petition for the reinstatement of his license to practice law in this state. After conducting an investigation, the Office of Lawyer Regulation (OLR) filed a response opposing the reinstatement petition due to a number of concerns about Attorney Polk's character and fitness to practice law, including his receipt of a citation for loitering-illegal drug activity, his multiple citations and convictions for operating after revocation of his driver's license and for other traffic offenses, and his failure to pay multiple civil judgments. The OLR's response did not mention any concerns regarding Attorney Polk's employment history or his unauthorized practice of law during his administrative suspension, presumably because it was not aware of Attorney Polk's employment at the new Eisenberg firm.

¶ 9 Because there appeared to be a number of disputed factual issues regarding the concerns raised by the OLR, on June 23, 2006, this court referred the matter to a referee, Reserve Judge Dennis Flynn, to receive evidence and make factual determinations regarding (1) the number and type of citations/convictions that Attorney Polk had received in connection with his operation of a motor vehicle, (2) the facts surrounding the incident for which Attorney Polk had received the citation for loitering-illegal drug activity and whether he had misrepresented those facts to the OLR in its investigation, and (3) the facts concerning the nature and status of the outstanding civil judgments against Attorney Polk. The court's order further provided that the referee “may also consider any other matter that the referee deems helpful to this court's decision of the reinstatement petition.”

¶ 10 Attorney Riley did not have any role in the preparation or filing of Attorney Polk's reinstatement petition. Attorney Polk represented himself during most of the reinstatement proceeding. Prior to the evidentiary hearing scheduled by Judge Flynn, however, Attorney Polk spoke with Attorney Eisenberg about concerns he had with the upcoming hearing. Attorney Eisenberg then spoke with Attorney Riley and directed him to assist Attorney Polk with the reinstatement hearing. The initial understanding among the three lawyers was that Attorney Riley would act as “second chair” for the hearing, meaning that Attorney Polk would still be primarily responsible for presenting evidence, examining witnesses, and making argument.

¶ 11 According to Attorney Riley, prior to the hearing he did not draft any legal documents and did not solicit witnesses to testify on Attorney Polk's behalf or prepare any witnesses to testify. The referee found, however, that prior to the hearing, Attorney Polk had specifically discussed with Attorney Riley that Attorney Polk was concerned about not having disclosed his employment with the new Eisenberg firm to the OLR in the reinstatement investigation.

¶ 12 The evidentiary hearing before Judge Flynn took place on September 6, 2006. Despite the initial understanding that Attorney Riley would act as only a “second chair,” he took the lead role in presenting Attorney Polk's case at the hearing. He handled the direct and cross-examination of all witnesses, made and responded to objections, argued legal issues, and presented closing argument in favor of Attorney Polk's reinstatement.

¶ 13 Some understanding of the flow of the hearing is necessary to understand the charges against Attorney Riley and his arguments against those charges. Although Attorney Polk, as the petitioner for reinstatement, bore the burden of proof, the parties and the referee agreed to hear first the testimony of a police officer who had been involved in issuing the citation for loitering-illegal drug activity to Attorney Polk so that the officer would not need to wait through other testimony and could return to his police duties. The OLR's attorney conducted the direct examination of the officer, and Attorney Riley cross-examined the officer on behalf of Attorney Polk.

¶ 14 After the completion of the officer's testimony, the hearing returned to the standard procedure, and Attorney Riley proceeded to present evidence on Attorney Polk's behalf. The first witness he called was Attorney Polk. Presumably because the referee had just heard the testimony of the police officer regarding the events that led to the issuance of the citation for loitering-illegal drug activity, Attorney Riley began Attorney Polk's direct examination not...