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

345 Wis.2d 42

824 N.W.2d 441

2012 WI 125

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Timothy J. RIORDAN, Attorney at Law.Office of Lawyer Regulation, Complainant–Respondent,

v.Timothy J. Riordan, Respondent–Appellant.

No. 2011AP984–D.

Supreme Court of Wisconsin.

Decided Dec. 27, 2012.

For the respondent-appellant, there was a brief filed by Timothy J. Riordan, pro se.

For the Office of Lawyer Regulation, there was a brief filed by Anne MacArthur, Anne MacArthur Law LLC, Madison.

ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

PER CURIAM.

[345 Wis.2d 43]¶ 1 Attorney Timothy J. Riordan appeals Referee Christine Harris Taylor's report recommendingthe court publicly reprimand Attorney Riordan for professional misconduct and impose the costs of the disciplinary proceeding on Attorney Riordan. Attorney Riordan argues that the matter should be dismissed, contending his conduct was justified as a matter of constitutional right and religious calling.

¶ 2 On review, we adopt the referee's factual findings and conclusions of law with respect to the two counts alleged in the disciplinary complaint. We agree that a public reprimand is appropriate discipline for Attorney Riordan's misconduct and order that Attorney Riordan pay the full costs of this proceeding, which total $10,664.88 as of October 22, 2012.¹

¶ 3 Attorney Riordan was admitted to the practice of law in Wisconsin in 1978. He practiced in the Milwaukee area. His license has been suspended since October 2012 for nonpayment of dues and non-compliance with trust account certification requirements. He has no previous history of attorney misconduct.

¶ 4 On April 29, 2011, the Office of Lawyer Regulation (OLR) filed a two-count disciplinary complaint against Attorney Riordan alleging Attorney Riordan violated SCR 20:8.2(a)² and SCR 40.15³ (the attorney's oath) which is enforced via SCR 20:8.4(g).⁴ The charges stem from multiple statements he made to and about a circuit court judge who denied a guardianship proceeding filed by Attorney Riordan.

¶ 5 The parties entered into a stipulation wherein Attorney Riordan admitted he made the statements that form the basis of the OLR's complaint. The referee conducted an evidentiary hearing on January 13 and 17, 2012. Following the hearing, Attorney Riordan was permitted to submit evidence of good character and filed a post-hearing motion to dismiss. On May 25, 2012, the referee issued a report and recommendation denying the post-hearing motion, concluding Attorney Riordan committed the alleged misconduct, and recommending a public reprimand and the imposition of costs. Attorney Riordan appeals.

¶ 6 Attorney Riordan's undisputed statements to the trial court were made in the context of a guardianship proceeding involving A.C. Attorney Riordan and his wife have been involved with the care of A.C., a disabled war veteran who now suffers from dementia, since the mid–1980s. From the mid–1980s until approximately 2001, A.C. resided in a supervised room and board apartment owned by the Riordans. Beginning in approximately 1985, North Central Trust Company served as guardian of A.C.'s estate, which at one point exceeded $475,000. A.C. did not have a guardian for his person until 2001.

[345 Wis.2d 46]¶ 7 In 2001 Milwaukee County petitioned for appointment of a guardian for A.C. and, on October 31, 2001, a circuit court judge found A.C. incompetent and appointed Kindcare as guardian of his person. Around this time, A.C. moved from Riordans' supervised apartment into the Riordan family home where he was cared for by the Riordans.

¶ 8 In April 2007 the Riordans petitioned to become guardians of A.C.'s person. At the time the petition was filed, however, there were three pending unsatisfied tax delinquencies against the Riordans totaling $25,000. On May 31, 2007, two days after a judgment of foreclosure was filed against them, the Riordans amended their petition to seek termination of the guardianship over A.C.'s estate on the ground that he was no longer incompetent. The Riordans sought the discharge of Kindcare as guardian of A.C.'s person and the discharge of North Central Trust Company as the guardian of his estate, nominating themselves as guardians of his person and estate instead. The Riordans also requested the court determine that A.C. be entitled to execute a will and powers of attorney, and that he be deemed capable of managing his financial affairs.

¶ 9 In November 2007 the court discharged Kindcare and appointed Supportive Community Services (SCS) as guardian of A.C.'s person. The court conducted a trial on the Riordans' petition on January 23 and 30, 2008, the Honorable Michael J. Dwyer, presiding.

¶ 10 On February 15, 2008, Judge Dwyer entered an order in the matter. The circuit court characterized the care the Riordans provided for A.C. as “top notch,” but noted they did not consider that A.C. was incompetent with a compromised capacity to make decisions. The court deemed the Riordans' reliance on A.C.'s income to be a serious conflict of interest and denied their petition. The court granted the Riordans' request for back pay for services in the amount of $2,000 per month from February 2006 through January 2008 and ordered prospective fees to the Riordans for care giving.

¶ 11 Considering these and other factors, the court continued North Central Trust Company's appointment as guardian of A.C.'s estate and SCS's appointment as guardian of A.C.'s person. The order granted SCS discretion to remove A.C. from the Riordans' home with adequate notice.

¶ 12 The Riordans, who apparently assumed Judge Dwyer would be sympathetic to their efforts to keep A.C. in their home, were unhappy with the court's ruling. Attorney Riordan filed motions seeking substitution of Judge Dwyer, seeking again to substitute the guardian of A.C.'s person and seeking Judge Dwyer's recusal from the case. On March 5, 2008, Judge Dwyer denied several of the Riordans' pending motions. During that hearing Attorney Riordan stated in open court that, “I don't really know whether or not the Court is biased.... And I can only respond as a person with, as the famous saying, you have rabbits in your hat, you pull them out in the court.”

¶ 13 The escalating rhetoric in subsequent court filings, as well as statements made by Attorney Riordan during the OLR's investigation of this matter, form the basis of the disciplinary complaint against Attorney Riordan. Attorney Riordan was critical of Judge Dwyer, impugning Judge Dwyer's ruling, his impartiality, and his judicial qualifications.

¶ 14 Shortly after the March 5 hearing, SCS notified the Riordans of its intent to remove A.C. from their home on April 24, 2008. On March 11, 2008, Attorney Riordan filed a notice of appeal and unsuccessfullymoved the court of appeals for a stay of A.C.'s removal from their home. On March 24, 2008, SCS sought to remove A.C. from the Riordans' home. The Riordans refused to comply with SCS's request to turn over A.C. because the notice SCS previously provided indicated a removal date of April 24, 2008.

¶ 15 SCS issued a second notice of intent to remove A.C. on a new date. When SCS arrived to remove A.C. from the Riordans' home on that date, it discovered a note authored by Attorney Riordan stating his wife had taken A.C. to an undisclosed location in an effort to prevent his removal from their home. SCS brought a motion to hold Attorney Riordan's wife in contempt as a result of her actions in concealing A.C.'s whereabouts. A hearing was conducted on SCS's motion on April 7, 2008, and on April 11, 2008, Judge Dwyer found Attorney Riordan's wife in contempt and ordered, among other things, a writ of body attachment and a sanction of $150 per day for each day she remained in contempt of court.

¶ 16 On April 18, 2008, Judge Dwyer held a hearing to further consider SCS's motion to hold Attorney Riordan's wife in contempt and the Riordans' motion to determine the condition of A.C., to take A.C. away on unsupervised visits, and to reconsider the court's prior decisions in the matter.

¶ 17 On April 25, 2008, Attorney Riordan filed a “Motion & Objections for the Record to Consider on the Safety of [A.C.] and [A.C.'s] Relationship to the Riordan's [sic] Related to the Court's Order of April 18, 2008.”

¶ 18 On May 7, 2008, Attorney Riordan filed “Motions & Objections for the Record Related to Both the Draft of the Order for April 18th, 2008 & Advocacy Counsel's Report to the Court as Related to [A.C.'s] Wellbeing.”

[345 Wis.2d 49]¶ 19 On May 30, 2008, Attorney Riordan filed “Amended Objections and Motions Related to the Decision & Orders from April 18th, 2008 Hearing.” Also on that date Attorney Riordan sent a letter to Attorney Pamela Crawford, Advocacy Counsel for A.C., which stated in part that “it has become apparent the rights of those under guardianship are not being fought for or protected due to financial, referral, or political ties to the Court all of which can be manipulated by the Court.” In a decision and order issued May 13, 2008, Judge Dwyer rescinded his prior contempt order against Attorney Riordan's wife and denied the pending motions filed by Attorney Riordan.

¶ 20 Attorney Riordan's filings contain increasingly negative rhetoric about Judge Dwyer. For example, in the pleading filed April 25, 2008, Attorney Riordan stated, in part:

• “[T]he Court has made errors of law and uses its hearings to ‘stage the appearance of due process' while it violates the Federal constitution, due process, and Chapter 54 rights....”

• “The evidence presented by the Riordans for the record is misused by a Court acting with bias and prejudice. Based on the evidence submitted to this Court and its response to the evidence, the Riordans have concluded that the Court acts on the record to cover-up its own involvement in violating [A.C.'s] and the Riordans' rights. This is necessary because the Court uses people as property for exchange to uphold a system of...