Office of Lawyer Regulation v. Bach (In re Disciplinary Proceedings Against Bach)

372 Wis.2d 187

887 N.W.2d 335

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Margaret BACH, Attorney at Law:

Office of Lawyer Regulation, Complainant,

v.Margaret Bach, Respondent.

No. 2015AP1958–D.

Supreme Court of Wisconsin.

Decided Nov. 29, 2016.

ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

PER CURIAM.

¶ 1 We review the report of Referee James J. Winiarski recommending that the court publicly reprimand Attorney Margaret Bach for professional misconduct and order her to pay the full costs of this disciplinary proceeding, which total $14,765.09 as of August 26, 2016.

¶ 2 No appeal has been filed from the referee's report and recommendation, so we review the matter pursuant to Supreme Court Rule (SCR) 22.17(2).¹ After considering the referee's report and the record in this matter, we agree with the referee's determination that the Office of Lawyer Regulation (OLR) proved by clear, satisfactory, and convincing evidence that Attorney Bach engaged in some, but not all, of the acts of professional misconduct alleged in the OLR's amended complaint. We agree that a public reprimand is appropriate and we require Attorney Bach to pay the full costs of this proceeding.

¶ 3 This court is familiar with the underlying facts giving rise to this case. It stems from Attorney Bach's efforts to advocate on behalf of her adult son, A.B., who is disabled. A.B. has a rare medical condition that renders him a danger to himself and others. Since approximately 2006, when A.B. turned 18, Attorney Bach has engaged in extensive litigation regarding his placement, level and quality of care, payment for that care, and guardianship.

¶ 4 Initially, Attorney Bach was appointed her son's guardian and cared for him at her home. However, in 2009, following a series of incidents and acrimonious litigation relating to A.B.'s level of care, the court appointed a corporate guardian for him. In 2011, the court appointed a new guardian, ARC of Greater Milwaukee, n/k/a Life Navigators, and appointed Elizabeth Ruthmansdorfer as A.B.'s guardian ad litem. Attorney Bach was aggrieved by these appointments and has challenged them repeatedly in court.

¶ 5 On July 5, 2011, Attorney Bach was admitted to practice law in Wisconsin. She continued to litigate but, as a licensed attorney, she is subject to the Rules of Professional Conduct for Attorneys, SCR Ch. 20.

¶ 6 On August 31, 2011, Attorney Bach filed a complaint in federal court against Milwaukee County and several other defendants, naming herself and her son as plaintiffs. Bach v. Milwaukee County, E.D. Wis. Case No. 11–C–828. The federal court dismissed Attorney Bach's complaint and Attorney Bach appealed. On July 24, 2012, the Seventh Circuit Court of Appeals dismissed Attorney Bach's appeal. Bach v. Milwaukee County, 490 Fed.Appx. 806 (7th Cir.2012), cert. denied (Feb. 19, 2013). The Court held that “Life Navigators and Ruthmansdorfer are the only persons authorized to act on [A.B.'s] behalf. ” (Emphasis added.)

¶ 7 Meanwhile, on June 21, 2012, the Milwaukee County circuit court judge presiding over A.B.'s guardianship case denied Attorney Bach's request to access the confidential guardianship court file.

On July 11, 2012, the court issued a written order confirming this ruling.

¶ 8 On October 16, 2012, the circuit court issued another written order, this time enjoining Attorney Bach:

... from filing, without this Court's prior approval, either on her own behalf and/or on [A.B.'s] behalf and/or on behalf of any other person purporting to represent [A.B.'s] interests, any complaint, petition, motion, or other request for relief (hereinafter ‘pleading’) in this guardianship proceeding, or in any other proceeding before any other state or federal court or other tribunal (including appellate courts), regarding [A.B.] and/or regarding any person or entity providing care or services to [A.B.] and/or any person or entity who serves as a legal representative to [A.B.], except that Ms. Bach may appeal this Order to the Wisconsin Court of Appeals.

¶ 9 On April 2, 2013, Attorney Bach filed another complaint in federal court challenging the circuit court's injunction as well as A.B.'s placement and visitation. Attorney Bach did not name A.B. as a plaintiff, but requested the court appoint a guardian ad litem for him. Bach v. Milwaukee County Circuit Court, E.D. Wis. Case No. 13–CV–370. On May 31, 2013, Attorney Bach amended her complaint, naming A.B. as a plaintiff.

¶ 10 In June 2013, in state court, Attorney Bach ordered transcripts of certain proceedings in A.B.'s guardianship case from court reporters. Later that month, the circuit court informed Attorney Bach that the court reporters had been instructed to cease their work, based on the 2012 June and July court orders.

¶ 11 In a June 2013 order, the Wisconsin Court of Appeals warned Attorney Bach that “[b]eing [A.B.'s] mother does not endow her with the right to sidestep, manipulate or disregard the rules by which all litigants must play.” Margaret B. v. County of Milwaukee, No. 2012AP1176, unpublished slip op., ¶ 7, 349 Wis.2d 526, 2013 WL 2495078 (Wis.Ct.App. Jun. 12, 2013).

¶ 12 On July 31, 2013, Attorney Bach appealed the circuit court's ruling regarding transcripts in the guardianship proceeding. The court of appeals summarily affirmed, stating:

Proceedings in guardianship cases are confidential by statute, and this court has previously upheld determinations that, because she is not her son's guardian, guardian ad litem, or adversary counsel, Bach has no standing in the guardianship case, no right to review his confidential legal or medical records, and no right to assert any legal claims on his behalf.

Bach v. Life Navigators, No. 2013AP1758, unpublished order (Wis.Ct.App. Dec. 30, 2014).

¶ 13 On September 11, 2013, Magistrate Judge Nancy Joseph dismissed Attorney Bach's federal complaint regarding the state court injunction, and A.B.'s placement and guardianship, warning Attorney Bach of the court's authority to enter an order limiting vexatious litigants' access to the court system. Attorney Bach appealed.

¶ 14 On April 5, 2014, Attorney Bach appealed another order in A.B.'s guardianship case. The court of appeals denied her petition for a fee waiver on the grounds that Attorney Bach had failed to present any arguably meritorious issues for review. Bach v. Life Navigators, No. 2014AP1007, unpublished slip op., (Wis.Ct.App. Sep. 22, 2014).

¶ 15 On May 22, 2014, the Seventh Circuit Court of Appeals affirmed Judge Joseph's decision, ruling that Attorney Bach had “abused the judicial process by filing multiple frivolous suits, many of which, like this one, could not succeed unless the court were prepared to ignore the outcome of her earlier suits.” The court also noted that Attorney Bach frequently named judges and courts as defendants, despite their absolute immunity. The court ordered Attorney Bach to show cause within 14 days why the court should not impose sanctions for a frivolous appeal.

¶ 16 On June 12, 2014, the Seventh Circuit Court of Appeals deemed Attorney Bach's appeal frivolous and fined her $2,000.

¶ 17 On October 28, 2014, Attorney Bach petitioned this court for a writ of mandamus in A.B.'s guardianship case. This court denied her petition, ex parte. Bach v. Circuit Court for Milwaukee County, No. 2014AP2537, unpublished order (S.Ct. Jan. 12, 2015).

OLR Complaint

¶ 18 In September 2015, the OLR filed a disciplinary complaint against Attorney Bach, alleging six counts of professional misconduct all related to litigation she conducted relating to A.B. The OLR amended its complaint in March 2016, this time, alleging five counts of misconduct. The OLR sought a public reprimand and imposition of costs.

¶ 19 The court appointed Referee James J. Winiarski and, following briefing, Attorney Bach's submission of extensive documentation, and the referee's denial of Bach's request for additional time to conduct additional discovery, the referee conducted an evidentiary hearing on May 9, 2016. The referee rendered his report and recommendation on August 8, 2016.

¶ 20 Supreme Court Rule 22.17(1) provides that within 20 days after the filing of the referee's report, the director or the respondent may file with the supreme court an appeal from the referee's report. As noted, Attorney Bach filed a “reply brief” but neither party filed a timely appeal. Accordingly, we review this matter pursuant to SCR 22.17(2).

¶ 21 We will affirm a referee's findings of fact unless they are found to be clearly erroneous, but we review the referee's conclusions of law on a de novo basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶ 5, 305 Wis.2d 71, 740 N.W.2d 125. We determine the appropriate level of discipline given the particular facts of each case, independent of the referee's recommendation, but benefitting from it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis.2d 45, 660 N.W.2d 686.

¶ 22 The referee made detailed factual findings. There is no persuasive showing that any of the referee's findings of fact are erroneous.² Accordingly, we adopt them.

¶ 23 The amended complaint alleged that Attorney Bach committed five counts of professional misconduct, alleging violations of SCRs 20:3.1 and 20:3.4. Supreme Court Rule 20:3.1 is entitled “meritorious claims and contentions.” Supreme Court Rule 20:3.1(a)(1) provides that in representing a client, a lawyer shall not knowingly advance a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification or reversal of existing law. Supreme Court Rule 20:3.1(a)(2) provides that a lawyer shall not knowingly advance a factual position unless there is a basis for doing so that is not frivolous. A Committee Comment published with the rule notes that Wisconsin Supreme Court Rules 20:3.1(a)(1) and (2) differ from the ABA Model Rules in expressly establishing a subjective...