I recently wrote about a Florida attorney who was disbarred (January 2018). It was a troubling tale of promises not kept, misrepresentations, and a Florida system that decided it would be better off without the attorney. Disbarment seems a permanent solution, but it is not always. There are provisions that allow a disbarred attorney to petition for readmission to The Florida Bar. It is perhaps not best characterized as "common," but it does happen.
Then, in early December a Wisconsin case came to my attention through social media. The case is In the Matter of Disciplinary Proceedings Against Michael D. Petersen, Attorney at Law.
The Wisconsin Supreme Court opinion was filed on December 15, 2017. The Court suspended Michael Peterson for one year, based on nine stipulated or agreed counts of misconduct. Mr. Peterson was hired by a father to represent a son accused of criminal conduct. There was an offer for a plea bargain, and the son accepted it based upon assurances by Mr. Peterson. Essentially, the defendant pled guilty to a certain charge, and Mr. Peterson led the client to believe that the charge would be changed or amended afterward (to something less serious). That was not true.
The father made repeated inquiries thereafter, and Mr. Peterson "repeatedly misrepresented" that "he was working" on getting "the charge amended." On one occasion, he represented that the amendment had been made. On another, he claimed to have the district attorney's written agreement to make the amendment. The attorney even provided the client with an email he said was received from the district attorney, but the district attorney "did not author this email."
When later pressed, the attorney claimed that paperwork for the amendment had been prepared and submitted to the "judge for processing," which was not true. The client continued to press for results, and the attorney claimed that a stipulation had been submitted to the judge. Those statements were likewise untrue. When the client thereafter emailed for the status of the change, Attorney Petersen responded that he was "waiting to hear from the court" and that the district attorney's absence was preventing progress. This was also untrue.
The attorney later emailed the client from his personal email account (not his work email) with an attachment "entitled Order Amending Conviction and Sentence." The client could not open the attachment. The client therefore picked up a copy of the order from Attorney Petersen's office, and took it to the "courthouse to confirm it had in fact been entered." The clerk raised doubts and contacted the judge's staff. The staff contacted Mr. Peterson who visited the courthouse, and examined it, "but did not admit he had created it."
Mr. Peterson later wrote to the judge "to explain the origins of the order." His correspondence "was not truthful and did not admit he had falsified the order." Mr. Peterson "suggested that the signature from [a] signed order had somehow been transposed in the copying process." He claimed that he had possibly "inadvertently created the order." He also insinuated that the client had perhaps created the signed order. That is an intriguing point, he insinuated his own client was acting inappropriately.
The court referred the "possible forgery" to the police and an investigation ensued. The client thereafter met with Mr. Peterson and recorded their meeting. This documented ongoing lies, promises, and claims that he was then working with the district attorney to correct as promised. In a later interview with police, "attorney Petersen denied that he had copied the judge's signature." The police then revealed that attorney Petersen's conference with his client had been recorded, and Mr. Petersen "ended the interview soon thereafter and said he wanted to speak to an attorney."
Soon thereafter, Mr. Petersen admitted in handwritten letters that he "phonied a document to get" the client "off my back." Mr. Peterson was charged with contempt of court, pled no contest, and was convicted. The criminal complaint alleged nine counts against attorney Petersen. He voluntarily admitted to "his misconduct recited in the complaint and his assent to the level and type of discipline sought." That stipulation and agreement also included that "an appropriate level of discipline for Attorney Petersen's misconduct is a one-year suspension of his license to practice law in Wisconsin."
It is a story of multiple untruths, a client mislead, resources, and time wasted. In his defense, "Attorney Petersen's counsel indicated that Attorney Petersen had a difficult childhood as the child of alcoholic parents, with a resulting psychological or psychiatric factor at play." The Court acknowledged that Petersen "sought psychological treatment" while being investigated by the police, but that "there is no proof in the disciplinary case that a medical condition was causal of the misconduct."
Some might conclude that his punishment was insufficient, including suspension of one year, paying the cost of the investigation, and repaying the client the fee paid for representation. Justice Bradley dissented from the decision and said as much. She noted
Attorney Petersen's misconduct was egregious. He repeatedly lied to his client about the terms of the State's plea offer. He told his client that certain charges would be amended when Attorney Petersen knew this was untrue. He then falsified an email purportedly written by an Assistant District Attorney in furtherance of the lies and falsely reported that the judge agreed with the amended charges. It gets worse. Attorney Petersen apparently forged a judge's signature on a fabricated court order, lied to the court and to the police, all the while continuing the lies to his client.
Justice Bradley concluded the punishment "is too light."
The Court, however, noted that Attorney Peterson's criminal conviction included a public disclosure requirement that might be interpreted as additional punishment. He was required for a year following his conviction to provide to each client:
a copy of the criminal complaint
a letter stating: I am a crook. I am a cheat. I am a thief. I am a liar. I was convicted of a crime on November 9th, 2015. My conviction resulted from my intentional choice to sell my own clients down the river and then trying to cover it up. You may not hire me or have me legally represent you in any fashion until you read the Criminal Complaint and Judgment of Conviction.
The Appleton Post-Crescent reported on the criminal conviction in November 2016, titled Judge Lashes out at Defense Attorney's Sentencing. It reports that "the judge laid into attorney Michael D. Petersen." The Judge reportedly "lit into Petersen with a run of R-rated language" requiring the quoted disclosure, recognizing it would hurt Petersen's business, and saying "I want you to have as much business as a pimp in a nursing home."
Petersen noted that during this experience, "his peers reached out to him" that "his family stood behind him," and that his "employer did not fire him, though they could have." He expressed never thinking he "would be on the other side of this table." His attorney claimed that Petersen had "addressed his conduct with a 'therapeutic response,' which includes counseling for poor decision-making." He urged that "Just because somebody makes a mistake doesn't mean they're a bad lawyer or incapable of doing their job."
As I read the litany of nine counts in the criminal complaint, I was reminded of the Walter Scott quote "O, what a tangled web we weave when first we practise to deceive." In each of the two attorney discipline cases posted recently, it seems that attorneys were confronted with difficult conversations they needed to have with clients. They were called upon to tell the client things that were neither pleasant to discuss nor favorable. They each seemingly elected to lie in avoidance of those conversations, and each found himself on a cascading and unstable ground thereafter.
What is the right outcome in providing punishment in such situations? Is public shaming appropriate as the berating Wisconsin judge employed? Is private disclosure of past actions appropriate, as the judge ordered? Is a one-year suspension sufficient to change behavior, or is disbarment, as Florida elected, and "permanent" protection of the public more efficacious?
Sometimes, when I write and speak of attorney and judicial offense and punishment, the feedback is disheartening. There are those who say they perceive our system as reluctant to punish egregious actions. Some believe that the system is run by attorneys and judges and that the system is seemingly reluctant to appropriately punish the wrongdoers, or sometimes even to acknowledge actions are wrongdoing.
It is troublesome that attorneys act inappropriately. It is troublesome that anyone acts inappropriately. Lying, cheating, and stealing are behaviors that are inappropriate; we are taught that throughout our formative years. If it is so clear that behavior is inappropriate, should we be able as a society to expect it not to occur? Can we expect even more of those in whom we place the trust of our lives, liberty, and property? Can more be done to reassure the public that they can receive trustworthy and honest treatment?
