*1 Against Proceedings Disciplinary In the Matter Attorney at Law: R. Kenneth Kratz, Complainant, Lawyer Regulation, Office v. Respondent. Kenneth R. Kratz, Supreme Court 6, 2014. June No. 2011AP2758-D. Decided 2014 WI 219.) (Also reported in 851 N.W.2d *3 report of the ¶ the 1. PER CURIAM. We review Kinney, Judge E. recommend- referee, Reserve Robert Attorney ing suspend R. Kratz's Kenneth the court period practice months. No for a of four license to law appeal filed. has been findings adopt approve and the referee's 2. We that of law. We conclude
of fact and conclusions Attorney Kratz's misconduct warrants seriousness require suspension. We that Attor- license four-month proceeding, ney pay which the full costs of Kratz August 20, 2012. $23,904.10 as of totaled practice Attorney Kratz has been licensed appointed District 1985. He was law in Wisconsin since County, Attorney Wisconsin, in 1992 and of Calumet resigned position in October in that until he served serving County 2010. Before as the Calumet District Attorney, Attorney Kratz served as an Assistant Dis- Attorney Crosse, trict in La Wisconsin. Attorney previous disciplinary
¶ 4. Kratz has no history. disciplinary complaint 5. The us, before filed (OLR) Lawyer Regulation
the Office of on November allegations 30, 2011,1involves that Kratz sent inappropriate messages text to a domestic abuse crime serving prosecutor victim, S.VG., while as the of the perpetrator complaint of the domestic abuse crime. The alleges inappropriate further that Kratz made verbal statements to two social workers with the Calu- County Department, met Human Services S.S. and R.H. This course of behavior served as the basis of six pled misconduct, counts of to which Kratz has no contest. complaint
¶ 6. The OLR's included an additional five counts of misconduct. One of those counts con- messages cerned Kratz's text S.VG.; remaining alleged four counts engaged inappropriate behavior toward addi- two women, tional for, J.W. M.R. The OLR moved granted, the referee the dismissal of three of these five days counts on June 2012, a few before the start of disciplinary hearing on June The OLR granted, for, moved and the referee the dismissal of the disciplinary other two counts at the outset of the *4 hearing. Attorney pleas Kratz entered no contest to the remaining six counts.
¶ 7. Of the six counts of misconduct to which Attorney pled contest, Kratz no three counts concern 1 1, Because the OLR filed complaint prior January its to 2012, Supreme all references will be to the Court Rules in effect prior 1, January to 2012. complaint, August According to the on S.VG. OLR's County Attorney serving Kratz, while as Calumet Attorney, felony complaint filed a criminal District against According to Kaukauna,
S.R.K. of Wisconsin. strangled complaint, S.VG., and the S.R.K. beat partner The and mother of S.R.K.'s child. former live-in felony strangulation complaint charged one count of 940.235(1)) § (pursuant and suffocation to Wis. Stat. disorderly (pursuant and one count of conduct to Wis. 947.01). § Stat. hearing Shortly preliminary after the this
matter, Kratz alone in a S.VG. met with attorney's room at the district office. S.VG. conference requested meeting, exercising right her to consult attorney "concerning disposition with the district involving a case a crime of which he or she was a 950.04(1v)(zm) (2009-10). § victim . . .." See Wis. Stat. meeting, During per- ¶ 9. S.VG. volunteered stating Kratz, sonal information to that she boyfriend, did not have a current that she suffered from self-esteem, mother, low that she lived with her struggling single that she was as a mother. According during S.VG., she understood meeting her with Kratz that he would be relayed prosecuting S.R.K. S.VG. also details of her relationship S.R.K., and indicated that S.R.K. had including previously beatings strangu- her, abused objected if lation. Kratz asked S.VG. she felony charge reducing to a misdemeanor. S.VG. objected suggestion. to the At the conclusion of the meeting, Attorney exchanged Kratz and cell S.VG. phone numbers. office, 11. After S.VG. left At-
torney began texting personal from cell S.VG. his phone. Attorney messages Kratz sent her three on *5 day they 20, 2009, October the same met, his last message you stating, [']s "Iwish weren't one of this office person clients. You'd be a cool to know!" ¶ 21, 2009, 12. On October Kratz sent messages, including asking you S.VG. 19 her: "Are the girl kind of that likes secret contact with an older you married elected DA . . . the riskier the better? Or do stop right any [sic] want to know before issues?" 22, 2009, 13. On October Kratz sent eight messages, telling S.VG. more her that she was "pretty," atty. "beautiful," "I'm I have the figure may $350,000 I house. have the 6 career. You be young, nymph, prize! tall, hot I but am the Start convincing," expect you and that "I would not to be the you other woman. I would want to be so hot and treat you'd good?" me so well that be THE R woman. U that According per- S.VG., to sonal overtures were offensive, unwelcome and and she respond Attorney was concerned that if she failed to to might respect Kratz, he take action with to the case against potentially adversely S.R.K. that could affect S.VG. reported 22, 2009, 15. On October S.VG. Attor-
ney messages Kratz's text Kaukauna Police Department. photographing messages
¶ 16. After the text on telephone taking statement, S.VG.'s S.VG.'s Department Kaukauna Police referred the matter to (DOJ). Department the State of Wisconsin of Justice reviewing messages ¶ 17. After the text and the report Department, of the Kaukauna Police the DOJ any determined that there had not been criminal activ- ity. representatives strongly sug- Nonetheless, DOJ
gested Attorney step Kratz that he aside from the self-report prosecution his conduct to the of S.R.K. *6 OLR. Attorney appointment
¶ Kratz facilitated the 18. special prosecutor a to take over the S.R.K. case. Attorney agreed resign Kratz also to as chairman of the Rights Crime Victims' Board. Wisconsin ¶ 4, 19. In a December 2009 letter to the OLR messages that included transcribed to from Attorney sought per- S.VG., Kratz admitted that he a "friendship" expressed regret sonal He S.VG. embarrassment for his conduct and admitted that he Attorney had trust. Kratz noted violated S.VG.'s also undergoing therapy why that he "to a was answer prosecutor, spotless sterling career with a record and reputation, professional would risk his esteem on such disrespectful a communication with a crime victim." September 15, 2010, 20. On published story regarding Attorney the Associated Press Kratz's text messages Attorney to S.VG. Kratz issued a statement admitting that he sent the texts and was embarrassed judgment. at his lack of September 17, 2010, 21. On the executive com- Attorneys
mittee of the District Wisconsin Association Attorney calling resig- issued a letter to Kratz for his nation. Doyle
¶ 22. After then-Governor James initiated against proceedings pursuant Chapter him removal Attorney resigned Statutes, of the Wisconsin Kratz position County Attorney his as Calumet District on October complaint
¶ 23. Two counts of the OLR's involve S.S., Kratz's verbal statements to a social County worker with the Calumet Department. Human Services pros- In October of Kratz parental rights ecuted a termination of case in which testifying, S.S. was a Prior to witness. S.S. commented testify- Kratz that she was nervous about ing. response In concerns, to S.S.'s your stated to that he S.S. "won't cum mouth." Later day Attorney Kratz remarked to S.S. that he leaving wanted the trial to be over because he was aon trip Vegas, "big to Las where he could have boobed women serve me drinks." complaint
¶ 25. One count of the OLR's involves R.H., Kratz's verbal statement to also a social County worker with the Calumet Human Services During Department. proceeding, Attorney a court *7 reporter Kratz commented in court to R.H. that a had "big beautiful breasts." day disciplin-
¶ 26. On the first of the scheduled ary hearing pleas matter, in this Kratz entered stemming of no contest to six counts of misconduct S.VG., S.S., from his behavior toward and R.H. The adequate referee found that an factual basis existed on accepted counts, each of the six the no contest pleas. by seeking
¶ 27. The that, referee concluded a personal relationship S.VG., with a domestic abuse serving prosecu- witness, crime victim and while as the perpetrator crime, tor of the thereby creating of the domestic abuse significant representa-
a risk that the materially tion of the State of Wisconsin would be by personal interests, limited his own Kratz engaged in in a concurrent conflict of interest violation 20:1.7(a).2 of SCR
2 20:1.7(a) SCR states:
703 that, 28. The referee also concluded by seeking S.VG., a a domestic abuse personal relationship witness, crime victim and her text by sending overtones, messages carrying sexual while prosecuting crime, Attorney the of the domestic abuse perpetrator in in engaged personality, Kratz offensive violation of SCR and SCR 40.15.4 20:8.4(g)3 that, 29. The referee also concluded by sending deliberate, unwelcome, and unsolicited sexually sugges- S.VG., tive text a domestic messages abuse crime witness, victim and while prosecuting perpetrator crime, of the domestic abuse harassed on the in sex, S.VG. basis of her violation of SCR 20:8.4(i).5 (b), Except provided par. lawyer represent as a not a shall representation client if the a involves concurrent conflict of
interest. A conflict concurrent of interest exists if: (1) representation directly of one client will be adverse to client; another or (2) significant representation there a is risk of one or materially by lawyer's responsibili- more clients will be limited client, person ties to another a former client a third or or personal lawyer. interest of the 20:8.4(g) professional SCR it states is misconduct for a lawyer oath;... attorney's to "violate the ." 40.15, oath," states, "Attorney's pertinent SCR part: qualify The oath or affirmation to be taken to for admission to *8 practice substantially following of law shall be in form: personality I will abstain from all offensive and advance no prejudicial reputation party witness, fact to the honor or aof or required by justice
unless of the cause with which I am charged;.... 20:8.4(i) professional 5 SCR states it is misconduct for a lawyer person sex, race, creed, to age, "harass a on the basis of
704 by stating ¶ 30. The referee also concluded that, County S.S., to a Calumet social worker and in witness parental rights a termination of case, that he "won't your cum in mouth" and that he wished the trial to be traveling Vegas over because he was to Las where he "big by could have boobed drinks," women serve me and making acting capacity these comments while in his as County Attorney, Attorney Calumet gaged District Kratz en- personality in offensive in violation of SCR 20:8.4(g) and SCR 40.15. by stating
¶ 31. The referee also concluded that, County S.S., a Calumet social worker and in witness parental rights a termination case, that he "won't your cum in mouth" and that he wished the trial to be traveling Vegas over because he was to Las where he "big by could have drinks," boobed women serve me making acting capacity these comments while in his as County Attorney, Attorney Calumet District Kratz ha- sex, rassed S.S. on the her basis of violation of SCR 20:8.4(i). Finally,
¶ 32. the referee that, concluded mak- ing during proceeding a comment R.H., a court County reporter "big worker, Calumet social that a had by making breasts," beautiful this comment while acting capacity County in his as Calumet At- District torney, Attorney engaged personality, in offensive 20:8.4(g) in violation of SCR and SCR 40.15. disciplinary hearing, ¶ At the June testimony the referee heard and received exhibits on appropriate discipline. the issue of the The referee also post-hearing briefing subject. received on the color, religion, origin, disability, preference national sexual or marital lawyer's professional status connection with the Legitimate advocacy respecting activities. foregoing factors (i)." par. does not violate *9 post-hearing argued brief, In the OLR 34. its Attorney suspended for that Kratz's license should be Attorney emphasized that six months. The OLR multiple women, all of them in vul- conduct involved argued positions. OLR that nerable or subordinate The Attorney Kratz did not intend to remove himself as prosecutor in the S.VG. matter until DOJ officials reported asked him to do so after S.VG. his actions to Attorney police. argued The OLR also that Kratz responsibility refused to take for his offensive state- argued and R.H. The OLR further that ments to S.S. because Kratz blamed his misconduct on yet competent addictions offered no medical various testimony addictions, that he had from his a recovered suspension appropriate given six-month would be that require petition it him would the court for reinstate- 22.28(3).6 ment under SCR post-hearing brief, In his Kratz argued public reprimand that a In was warranted. support argument suspension of that a his license was downplayed warranted, not the serious- S.VG., S.S., ness of his misconduct and R.H. toward Regarding S.VG., his texts to they wrongful behavior, Kratz admitted constituted but "disagree[d] with the OLR's characterization that the (as messages message contained 'sexual overtones' no single sexually any explicit term, included one nor was suggested)." sexual conduct or sex act ever upon learning Kratz also described his conduct that objected praiseworthy. S.VG. to his texts as He wrote: 22.28(3) states, attorney SCR "The license an is suspended revoked or for or misconduct six months more pursuant procedure shall be reinstated to the set forth in SCR only by supreme 22.29 to 22.33 and order of the court." hint interest, reports conflict of or [U]pon even the *10 [S.VG.], unsettling steps immediate were of reaction of perception to eliminate even the continued taken violation; timely imposition self-report to the OLR (if required); aggressive steps and to ensure of sanction never, stupidity repeated this ever itself. That is the attorney praise, this Court should rather response that punish. than Regarding verbal comments to social his [her] in S.S. that he "won't cum mouth" and
worker having "big boobed women serve looked forward Attorney "recognized [him] drinks," Kratz that he wrote disrespectful phrase apologized used, to the the and opportunity." Social Worker at the first Regarding ¶ 38. his statement to social worker "big "reporter"7 breasts," beautiful R.H. that a had post-hearing in Kratz wrote his brief that this argued "never occurred." Kratz comment admittedly reporter although to, "the referred beauti- large single impor- ful, does NOT have breasts ... this upon by Respondent tant factor has been relied very made, the comment never or at the conclude was misinterpreted by [was] [R.H.]." least, Kratz "given posture case, conceded, however, that the of this [R.H.] the tribunal is free to include the facts of the provide weight comment, it such in the sanctions and necessary." as deemed recommendations "reporter" Attorney referencing Kratz What kind of was proceedings in before the was the source of some confusion the complaint, reporter referee. In the OLR referred to the as a its disciplinary hearing, reporter." "court Three weeks before reporter," complaint moved to amend its to refer to "a the OLR granted the OLR's opposed reporter." to a "court The referee as brief, post-hearing In motion to amend. his reporter question reporter." described the in as a "TV mitigating factor, 39. As a Kratz wrote post-hearing in his brief that at the time in events question, Sexually he from the "suffered combination of (SCD) Compulsive prescription drug Disorder dependence" sought for which he has treat- —conditions ment. He also claimed that he wanted "to settle the early disciplinary process, case" but the OLR part "apparently so, refused to do because it is more 'they pursuit concerned with how look' in the zealous attorney 'pelt,' an rather than what result 'should' be reached." July report 30, 2012, 40. On the referee filed a considering appropriate
and recommendation. In discipline, weighed aggravating the referee various *11 mitigating factors. aggravating
¶ 41. The referee noted as factors that motive; Kratz acted with a selfish that S.VG. was a vulnerable and victim; particularly Kratz's misconduct was inexcusable light legal experience previ- of his considerable and his leadership pertaining rights. ous on issues to victims' assigned weight
¶ 42. The referee
neutral
to At-
torney
self-report
to the OLR of his misconduct
involving S.VG. The referee wrote that "at the time of
respondent's self-report,
already
the
the cat was
out of
bag,
speak.
gone
police,
the
so to
S.VG. had
to the
the
police
Department
had contacted the Wisconsin
of
agency urged
respondent
Justice, and that
the
to self-
report
to the OLR." The referee found that
these
"significantly
any
circumstances
undercut
claim of vir-
by self-reporting."
tuousness
variety mitigating
¶ 43. The referee noted a
of
summary
factors, which, in
fashion, are as follows: At-
torney
prior disciplinary history;
Kratz has no
he
apologized
vulgar
shortly
to S.S. for his
comment
after
attempted
justify
making it; he has never
or defend
cooperated
S.VG.; he
his conduct toward
with the
proceedings;
previously enjoyed good
disciplinary
he
a
engaged
significant
professional reputation
and
vol-
legal profession;
activities
the
he has
unteer
within
diagnosed
sought treatment
been
with and
for narcis-
personality
addiction;
sistic
abusing
disorder and sexual
he was
painkiller
sleeping Ambien,
Vicodin,
aid
the
anti-anxiety drug
at
and the
Xanax
the time of
subsequently sought
misconduct; he
treatment for his
voluntarily
issues;
abuse
he
obtained a men-
substance
Lawyer
attorney through
tor
the State Bar's Wisconsin
(WisLAP),
being
Program
reported
im-
Assistance
who
pressed
Attorney Kratz's character and commit-
recovery;
ment
and he had suffered substantial
including
consequences
misconduct,
collateral
from his
negative publicity, the loss of his district
considerable
attorney position,
significant
financial difficulties.
weighing
aggravating
miti-
44. After
these
gating
factors, the referee recommended that
practice
suspended
Kratz's license to
should be
law
period
support
In
his recommen-
of four months.
lighter
proposed by
than that
dation for a
sanction
emphasized
weight
OLR, the referee
the number and
mitigating
in this case. The referee also
factors
suggested
suspension
that a four-month
was consistent
discipline imposed
with the
in two cases that he be-
*12
analogous
particularly
case. In re
lieved were
to this
Proceedings Against
Disciplinary
Beatse,
115,
2006 WI
(assistant
292,
district
297 Wis. 2d
709
inappropriate
county employee
comments to a
in a
environment);
Disciplinary Proceedings
work
In re
Against Ridgeway,
452,
158
2dWis.
submitted to the court to SCR We findings they affirm a referee's of fact unless are found clearly Disciplinary Proceedings to be In erroneous. re Against Inglimo, 126, 5, 2007 WI 305 71, Wis. 2d 740 N.W.2d 125. We review the referee's conclusions of law appropriate on a de novo basis. Id. We determine the discipline given particular level of the case, facts of each independent of the referee's recommendation, but ben- efiting Disciplinary Proceedings Against from Init. re Widule, ¶ 34, 2003 WI 261 Wis. 2d 660 N.W.2d reviewing
¶ 46. After record, we conclude that findings supported by the referee's factual are adopt adopt record, and we them. We also the referee's conclusion that Kratz committed the six counts of misconduct described above. 22.17(2) SCR states as follows: appeal timely, supreme If no is filed court shall review report; reject adopt, modify findings
referee's or the referee's conclusions or remand the matter to the referee for additional findings; impose appropriate discipline. and determine and The court, motion, may parties on its own order the to file briefs in the matter. *13 appropriate respect level of to the ¶ 47. With agree discipline, four-month referee that a with the we necessary discipline suspension Kratz's is Attorney Kratz's conduct in this matter. misconduct Through appalling. a series of whee- S.VG. was toward attempted messages, Attorney dling con- Kratz to text witness, and crime victim S.VG., a domestic abuse vince relationship he him while into a sexual to enter perpetrator prosecuting crime. of the domestic was leveraged by entreat- Kratz's sexual felt S.VG. respond him, he to to that if she failed ies; might feared she that could abuse case in her domestic take action exploitative adversely potentially her. This was affect placement harassing of behavior, and a crass behavior, personal client, the those of his interests above his comments to social State Wisconsin. his in one of served as a witness while she worker S.S. [her] looked in mouth" and cum he "won't cases—that serving "big him drinks to boobed women" forward unprofes- separating Vegas line Las —crossed harassing. acutely Attor- offensive and from the sional ney during R.H. to social worker Kratz's statement approval proceeding, of a he in which voiced court sufficiently "big reporter's boor- breasts," was beautiful short, his In whatever misconduct. as to constitute ish lawyer, accomplishments qualities as a question during period proved to himself sanctionably sophomoric. be poor his rationalized Kratz has by confessing Am- to various addictions: to behavior though he fails to sex, Vicodin, Xanax, and to bien, to expert testi- point medical records or either medical severity mony explain the exact nature that would they may his have affected conditions, his or how ability to conform his ethical behavior to rules. But *14 regardless Attorney of how we view Kratz's involuntary byproduct addiction, behavior —as an of or professional as a willful blindness standards —the ugly picture painted the record remains the same. suspension The recommended four-month is deserved.9 ¶ 49. We turn next to of the issue costs. The OLR August listing filed its of 20, 2012, statement costs on 22.24(2) Supreme $23,904.10 in costs. Rule Court re- quired Attorney any objection Kratz to file to the OLR's days statement of within 21 costs after service—or on September 10, or about 2012. On November 2012— past Attorney over two months Kratz deadline— objection along filed costs, an to the statement of asking accept filing. a motion the court to his late Attorney explanation Kratz offered no for the lateness filing. of his reject Attorney
¶ 50. We Kratz's unexcused late filing. suggestions. Filing Our deadlines are not mere documents with this court over months late two with no consequences. semblance of a reasonable excuse its has explained: As the Seventh Circuit has We live in a world of we're deadlines. If late for the movie, start of or game the departure or late for plane train, of the things go or the forward without us. 9We note referee additionally that the recommended that practice Kratz's license to law in this state should be conditioned on participation his continued in a WisLAP moni toring program. We further note that in April the WisLAP coordinator wrote to advise the court that Kratz had successfully two-year completed voluntary monitoring con tract light with WisLAP In of Kratz's successful completion contract, monitoring his WisLAP we decline to order continued monitoring. WisLAP exception. good judge A sets practice of law is no
The deadlines, judge right has a to assume deadlines will be honored. (7th v. 153, 157 Cir. City Indianapolis, F.3d
Spears 1996). if Kratz's Even we were to consider merits, on its it falls well short of to costs
objection than full costs. anything us to other convincing impose untimely objection anything, Attorney If it his cause. helps hurts more than costs In his untimely objection, The no costs whatsoever. pay that he should insists consistent with our asks us to full costs impose OLR *15 22.24(1m).10 under SCR standard practice an equal split 53. The referee has recommended that In his the referee stated report, of the costs. is to all costs general impose the court's although policy 22.24(1m)(effective July from 2006 to December SCR 2011) provides: upon finding general policy of miscon The is that a court's costs, including expenses appropriate impose of all duct it is respondent. lawyer regulation, upon In for the officeof counsel extraordinary may, involving in the circumstances the court cases discretion, imposed upon the amount of exercise of its reduce costs exercising regarding respondent. the assessment a In its discretion parties costs, of the and of the court will consider the submissions following factors: all of (a) contested, proven. charged, The number of counts (b) The nature of the misconduct. (c) sought by parties discipline and recom The level
mended the referee. (d) disciplinary pro respondent's cooperation with the The cess.
(e) discipline, any. if Prior
(f) relevant circumstances. Other against respondent upon finding a misconduct, a 22.24(1m) "[o]ne of the relevant factors set forth in SCR warrants deviation from the factor, standard rule." That 22.24(1m)(a): according "[t]he referee, to the is SCR charged, proven." number of counts contested, and The spent referee noted that the OLR "more than the usual locating arranging time and effort" in for the testimony grievants, of the two and M.R., J.W whose claims formed the basis for four misconduct counts that shortly the OLR dismissed at or before the start of the disciplinary hearing. explained scheduled The referee although it is "not at all unusual" for the OLR to during disciplinary pro dismiss claims the course of a ceeding, impose it "would seem unfair... all the respondent." costs on the disagree
¶ 54. We with both the referee and At- torney impose Kratz and full costs. Under SCR 22.24, authority the court has the exclusive to decide the appropriate against disciplined assessment of costs lawyer. We note that at the time the referee filed his report recommending halving normally the costs as- against Attorney oper- sessable Kratz, the referee was ating disadvantage. at an informational Consistent 22.24(2), with SCR the OLR filed its statement of costs and an itemization of costs several weeks after the report. referee filed his Reviewing
¶ 55. the costs novo, issue de we dis- *16 agree with the referee's recommendation that the costs against essentially assessed Kratz should be proportional percentage to the of counts on which the prevailed. OLR emphasized, It true, is as the referee 22.24(lm)(a) that SCR lists as a factor to consider in reducing charged, costs the "number of counts con- proven." tested, require rules, Our however, that to impose lawyer disciplined, less than full costs on the the
714 "extraordinary circumstances." first find court must 22.24(lm). Only if the court finds that and when SCR particular "extraordinary in a case exist circumstances" may in factors listed SCR consult the court (f) 22.24(lm)(a) imposition guide through the court's of costs. extraordinary circumstances do not find 56. We extraordinary begin
present with, it is not here. To prosecute counts for which all misconduct the OLR to Preliminary found cause to Review Committee the proceed. referee, it is "not at all
And, the words of during the to dismiss claims for the OLR unusual" disciplinary proceeding, as was the case with course of a here.11As for who counts dismissed the five misconduct litigating pay misconduct dismissed the cost should attorneys lawyer charges disciplined or the other —the barring former, court has chosen in this state —this "extraordinary definition, which, we circumstances" 22.24(1m); normally In re see also find. See SCR do not Pangman, Proceedings Against Disciplinary 216 (1998) (rejecting 232 440, 460-61, 2d 574 N.W.2d Wis. objections on an of costs based to full assessments allegations apportionment established); the number of misconduct Proceedings Against Disciplinary In re (1991) 54 Johnson, 14, 20, 2d 477 N.W.2d 165 Wis. (same). extraordinary nothing about find also 57. We stridently un- advanced his claim, court, only what we know appellate note that as an We why contains, precisely know the OLR and we do not
the record court's did. Nor should we: this the counts that it dismissed litigation quarterback the OLR's function is not to armchair determine whether the decisions, the record and but to review violated the respondent properly concluded that referee by engaging in misconduct. ethics code *17 timely objection willing costs, to that he to was condi- tionally charges admit some of the misconduct several disciplinary hearing. months before the scheduled We reject premise Attorney argument: Kratz's that through expensive dragged disciplinary he has been an process furiously waving flag while white of surren- very beginning. simply der from the This is not true. primary ¶ 58. The basis for disciplinary proceedings claim that these were unnec- essary single e-mail, is a dated about two weeks after complaint, the OLR filed its from Kratz to the OLR's In this e-mail, counsel. Kratz stated his willingness pleas to enter no some, contest but not ultimately pled all, of the counts which he no contest. pleas He offered no to enter contest to the three counts involving ultimately pled S.VG. to which he no contest. He denied misconduct toward He R.H. stated he had making vulgar "no recollection" of remarks to S.S. "prefer something and would not to admit to I do not any recall," and he denied that "one-time crude re- marks" could constitute harassment under SCR 20:8.4(i). "[t]his presumably, He stated that count"— personality 20:8.4(g) offensive count SCR under concerning SCR 40.15 S.S.—"could result a 'no con- plea you hang your test' if want a 2nd 'incident' to hat [S.VG.]" although on, other than He stated he accept suspension, would a six-month he wanted the suspension to take effect later, less than three weeks given against suspension and to be "credit" his for an period during over five-month he had which "removed [himself] practice from the of law." We note that with request against his proposed for an over five-month credit his suspension, Attorney
six-month Kratz was proposing suspension that he receive a net of about *18 Attorney explained Kratz that he intended three weeks. "opportunity to be licensed state, out of and his to move my requires reinstatement here." elsewhere Attorney untimely reply Kratz's In its to objection it costs, to the OLR informs us that chose not Attorney accept in Kratz's e-mail. to the terms stated agree that it did not The OLR states allegedly suggestion Kratz's that the time he refrained against any practicing should be "credited" from law agree imposed suspension. The OLR also did not to starting suspension period the less than three weeks the e-mail. The OLR further informs after the date of it this court us that reminded engaging plea prohibits parties in OLR cases from bargaining. e.g., Inglimo, See, 71, 305 Wis. 2d Finally, the time the OLR tells us that at e-mail, the OLR director "reconsidered the Kratz's viability and determined it of each misconduct count by inappropriate drop suggested to the counts would be Attorney Kratz." highly equate
¶ 60. decline to We extraordinary optimistic cir- settlement offer with an justify cumstance sufficient to a reduction costs. Although long lawyers allowed and the OLR to we have jointly stipulations enter into of fact and law justifiable discipline, request imposition level of the of a to undertake the we refuse Kratz's invitation evaluating parties' to reach such a task of efforts stipulation; history parties' case i.e., to review the of the willing to in order to determine who was discussions consequence; stipulate what, when, at what reasonably stipulated achiev- whether a outcome was totaled at the able; and how much the SCR 22.24 costs point(s) in relevant time.
717
say
impossible
¶ 61. This is not to
that it is
for an
attorney
imposition
limit,
or
eliminate,
even
attorney may entirely
costs under SCR 22.24. An
avoid
paying
proceeding by entering
of a
costs
into a
comprehensive, court-approved stipulation prior to the
appointment
e.g.,
Disciplinary
See,
of a referee.
In re
Proceedings Against Compton,
112,
WI
22.12).
(citing
Wis. 2d
¶ 63. We do not find the costs incurred extraordi- nary either. The costs $15,000 consist of about in fees and disbursements from the counsel; OLR's about mileage expenses; $5,700 in referee's fees and and about reporting $2,900 in court and other costs. argue any way Kratz does not that these costs were challenge inflated. He does not the billable rates of the spent by OLR's counsel referee, or the or the time either any particular challenge any on task. He does not expenses excessively high. disbursements or as He does 22.24(2) "explain, not do what SCR instructs: specificity, objection [to costs] the reasons for the and . . . state what he . . . considers to be a reasonable amount of costs." place specificity In Kratz resorts hyperbole. tardy objection He writes in his to costs:
As this Court should now undeniably have deter- mined, nothing there is ORDINARY about this disci- plinary brought by against case the OLR Respon- dent, and the against assessment ANY costs Respondent, as a result of the OLR's insistence on a unjust hearing, formal is and on borders the intellectu- ally insulting. Respondent was the every-
[I]t himself who done has thing, any grievance since well before formal was filed OLR, with the to resolve this entire matter with professional humility, having immediately and consis- tently taken responsibility any possible full Su- preme Court Rule violation.... proves every stage
¶ 65. The record otherwise. In proceedings, Attorney employed of these Kratz has litigation approach. tooth-and-nail He denied all mis- complaint conduct in his answer to the OLR's jurisdictional, proce- raised various constitutional, operating dural defenses. He accused the OLR of under unethically leaking a conflict of interest and of infor- complaint mation. He moved to dismiss the OLR's on separate grounds; rejected nine the referee later "replete motion as with bare assertions of fact" which properly may were "not before the referee and not be engaged vigorous discovery practice, considered." He including propounding interrogatories, filing over 125 *20 discovery attempting compel pro- motions, and to parties. duction of documents from third He raised arguments ranged (e.g., disput- from the incredible ing messages his text to S.VG. contained sexual over- tones); hyper-technical (claiming to the the OLR com- plaint was barred the civil doctrines of issue and preclusion investigator initially claim because an OLR grievance declined to forward S.VG.'s for formal inves- tigation); (denying any to the inconsistent recollection making claiming inappropriate comments to S.S. but
of having recognized inappropriateness credit for their (arguing apologized); puzzling that he could to the reporter "big had have told R.H. that a beautiful not reporter question beautiful, in breasts" because the was breasted). large but not right was, course, 66. It of to
vigorously charges. contest the misconduct But SCR 22.24(lm) lawyer makes clear that when a whom this ultimately guilty imposes court finds of misconduct system, disciplinary expect costs on the he or she must pay. litigation, every litigant knows, And as is not cheap. litigation We refuse to transfer the costs that generated attorneys Kratz has to the other any wrongdoing. the state who are innocent of nothing "extraordinary" end, In 67. there is perspective. general here from a costs impose Our rule is to upon finding misconduct, full costs a and we 22.24(lm). do so here. SCR See ¶ 68. IT IS ORDERED that license of Ken- practice suspended neth R. Kratz law Wisconsin is period July months, for of four effective ¶ 69. IT IS FURTHER ORDERED that Kenneth comply provisions R. Kratz shall concerning of SCR 22.26 person the duties of a whose license to practice suspended. law Wisconsin has been
¶ 70. IT IS FURTHER ORDERED that within 60 days order, of the date of this Kenneth R. Kratz shall pay Lawyer Regulation to the Office of the costs of this proceeding. compli- IT IS FURTHER ORDERED that required
ance with all conditions of this order is 22.28(2). reinstatement. See SCR *21 ¶ {concur- 72. SHIRLEY S. ABRAHAMSON, C.J. join ring). per opinion. I curiam disciplinary system ¶ 73. The OLR is about 15 years proposed old. Several anomalies and amendments brought have been to the court's attention. It is time for system the court to institute a review the rather than piecemeal adjustments my to make writings at this time. See Johns,
in OLR v. 32, 2014 WI 746, 353 Wis. 2d 179; Osicka, 847 N.W.2d OLR v. 2014 33,WI 353 Wis. 2d 656, 847 343; Osicka, N.W.2d and OLR v. 2014 WI 353 Wis. 2d 333; N.W.2d of even date. support I welcome Justice Prosser's for an impartial, objective, thorough practices review of OLR procedures, support gave open and he at the rules petition history conference in October 2013. For a of a proposal open for such a review, listen to the rules petition conference of October 25, 2013, in connection proposals change practices. in OLR's question instituting 75. The such a review again. hope get will come before the court I it will four votes. {concurring part, T. PROSSER, DAVID J.
dissenting part). every govern- From time to time agency impartial, objective ment would benefit from an agency's practices procedures. review of the There increasing is evidence of the need for such an evalua- (OLR). Lawyer Regulation tion of the Office of This highlights problems facing agency case some of the why objective an review would be desirable.
I ¶ 77. It must be stated at the outset that requires misconduct of Kenneth Kratz disci- pline. I concur in the recommendation of the referee suspension, Kratz receive a four-month suspension approved by which is the the court. *22 suspension. A six- ¶ a six-month OLR wanted 78. Attorney require suspension Kratz to would month process court, that often this a readmission from seek year. suspension part A of that the of a takes better unreasonable. would have been duration Attorney pay all ¶ Kratz OLR also asked 79. namely, proceeding, $23,904.10, and costs of contrary approves to the recommen- costs, these court by requested The costs of the referee. exorbitant dation by require granted this discussion OLR—and court — partial prompt dissent. and this
II charged 11 counts Kratz with 80. OLR counts involved S.VG. One of misconduct. The first four by OLR. The counts these counts later dismissed was why Attorney involving the reason S.VG. are They requires discipline. ¶¶ in 7-22 of are described opinion. the Per Curiam highly inappro-
¶ 81. Kratz's conduct was important priate is and cannot be defended. What concurrence/dissent, however, is that the substance this including messages all text between counts, of these by self-reported Kratz to S.VG., Kratz and were making proof of ethical 4, 2009, on December OLR easy accomplish. Thus, one of the first violations why any charges not file issues to examine is against Attorney OLR did 30, Kratz until November retrospect, obvious, It seems that Attor- ney breakdown of some sort Kratz suffered serious through had been considerable October 2009.1 He case, County Circuit The referee in this former Oneida Kinney, following "Report in his Judge Robert E. wrote the court: Recommendation" to through special prosecutor stress from 2005 2009 as high profile Avery murder trials of Steven Dassey County. Brendan in Manitowoc Post-conviction proceedings Dassey's pending in culminating case were still in the five-day hearing 2009, fall of in a in 2010. separated Kratz and his then-wife in October during period, began this stressful and he prescription drugs. abuse arid Whether these stresses difficulties contributed to Kratz's October speculative, conduct is but the stresses and difficulties speculative. are not 83. Counts 1, 4, 5, and 6 are based on inci- *23 during
dents that occurred October 2009. No date is given for the in incident Count 7. Attorney
¶ unacceptable Kratz's text mes- sages respect place period to S.VG. took a over of days approximately three 2009, October a week after separation day from his wife. On the third S.VG. took police. the matter to local weeks, Within two Kratz had removed himself from the criminal case in which S.VG. Department was the victim. After the Wisconsin Perhaps perplexing aspect the most seeming of this case is the incongruity respondent's professional between some of the accom- plishments inexplicable and the engaged behavior which he brings which him before the Court now... . respondent appointed special prosecutor The was in the case of Avery. high-profile State v. Steven This was a case with state-wide coverage. During period, media .. respondent . this time sleeping prescribed testified he had trouble drug and was Shortly thereafter, people Ambien. ... change observed a in his respondent [T]he behavior. .. . pre- testified that he had been anxiety attacks, taking scribed Xanax for and was left-over Vicodin prescribed which surgery. had been earlier after he underwent The respondent developed dependency testified that he a on Ambien and Xanax. He drugs testified that he believes the use of these speech diminished his inhibitions and caused his to be more unfiltered. (DOJ) conduct, Kratz's notified Justice was resign pressured chair of the Kratz to as it Rights self- Board and to Victims' Crime Wisconsin report latter on He did the misconduct to OLR. his admitting and ex- 2009, his misconduct 4, December pressing it. his embarrassment com- OLR received 85. When messages, including it com- all the text munication, February investigation. Thereafter, on menced an grievance On Febru- from S.VG. 2010, OLR received asking ary investigator that wrote to S.VG. an OLR having investigator. re- On March she contact investigator response S.VG., the notified from ceived no Attorney Kratz had closed. that the matter been S.VG. sum, In three months after this action. notified of was necessary prosecute information it all the received receiving barely a month after Kratz and grievance S.VG., OLR closed the case. from why did does not indicate S.VG. 86. The record up grievance. The record does not on her not follow ample why it had closed the matter when indicate OLR proceed letter to if it to do so. OLR's wished evidence "did not Kratz's conduct S.VG. stated appear possible professional misconduct." to involve later, Sellen, Keith director of months 87. Six *24 Ryan Foley, reporter by a for contacted OLR, was (AP). later indicated an Press Sellen the Associated been aware of the Kratz that he had not affidavit Foley inquiry. matter before the Foley followingday,September ¶ 15, 2010, The 88. story information he obtained a based on wrote news police report the Kaukauna Police a released from Department. Foley how he learned about did not reveal Attorney report describing police Kratz's conduct.
724 Foley's story triggered political AP a fir- general estorm less than two months before the 2010 election. Attorney There were immediate calls for resignation County Attorney. as Calumet District Attorney resign, When Kratz did not Governor James Doyle proceedings initiated him to remove from office. political 90. The Kratz matter became a issue.2 Scott attorney Hassett, the Democratic candidate for general, opponent, accused his incumbent knowing General J.B. Hollen, Van of about the Kratz nearly year doing "nothing matter for about it."3 Party Democratic Chair Mike Tate accused Van Hollen up" discovering sexually-harassing of a "cover "after messages Republican political ally text fellow Ken boyfriend Kratz trying sent to a woman whose he was nearly strangling her to death."4 responded General Van Hollen pressured these attacks with assertions that the DOJ resign Rights Kratz to from the Crime Victims Board self-report and advised him to his conduct to OLR. "There are no bones about the fact that the Office of Lawyer Regulation dropped here," the ball Van Hollen newspaper Appleton.5 told the Post-Crescent He said 2 Collar, Fallout With Jim County Calumet District Ken Kratz On Takes Political Tinge, Appleton Post-Crescent, September 21, 2010. 3 Challenger Scott Says Attorney Hassett General J.B. Cf. Van Hollen Knew About District Sexting Case But Did It, Nothing About Milwaukee Sentinel, 4, Journal October 2010 (citing Scott Hassett email Hollen, see also Van supporters); AG?, a pretty good Isthmus, October 2010 at 6. 4 Release, Press Party Wisconsin, Democratic J.B. Van Continues, Hollen's Ken 2010) (on Coverup (Sept. file author). Collar, Wisconsin Jim General J.B. Van Hollen Criticizes Lawyer Regulation For Its Handling Case Office of *25 that had told S.YG. that OLR to learn
he was surprised to involve appear "did not Kratz's conduct very "I am personally misconduct." professional possible Lawyer that the Office the fact concerned with nothing wrong there was determined Regulation added.6 he activity," with this from a letter now received OLR, having Kratz in- Fox, reopened Michael attorney, S.VG.'s in. More than came complaints Additional vestigation. later, complaint. OLR filed its 13 months
Ill OLR was determined From all appearances, It selected as outside the ball." "dropping make up 11 charges against filed Basting, Thomas who counsel to four counts related Kratz, including seven essentially OLR charges, In one of these new matters. sexual assault: Kratz of accused conversations, Kratz asked to phone After various that Kratz apartment. JW asserts at her visit JW JW, threatening apartment arrived at her after ... her to have sex. forced 28, 2010, informa- provided JW September On Depart- her officer at the probation Kratz to tion about (DOC). reported the The DOC ment of Corrections to the DOJ. issue provided who a state- The DOJ interviewed JW Kratz, alleges that provided
ment. The statement JW Kratz, Ken County District Apple- Involving Calumet 2010). Post-Crescent, Sept. ton Flannery, Executive Editor See interview by Dan Post-Crescent, J.B. General Appleton with Wisconsin http://www.postcrescent.com/article/20100922/ Hollen at Van APC0101/9220673/Wisconsin-Attorney-General-J-B-Van-Hollen criticizes-Office-Lawyer-Regulation-its-handling-case-involving- Calumet-County-District-Attorney-Ken-Kratz.
while Attorney District County, Calumet had forcible sex with an emotionally vulnerable woman previ- after ously prosecuting the woman. added.)
(Emphasis filing ¶ charge pertaining 94. In this sensational alleged only to assault, sexual OLR not discredited Attorney implicitly Kratz but also criticized the DOJ and failing local law enforcement authorities for to prosecute quietly charge. him. It later dismissed the
¶ 95. above, As noted OLR also asked that Attor- ney suspended practice Kratz be from the of law for six months.
IV Looking Attorney backward, OLR forced being Kratz to required defend his law license to avoid apply to bar, readmission to the and to defend against alleged Attorney himself criminal conduct. disputed Kratz admitted the S.VG. counts but that he suspended should be for six months because of them. In dropped including alleged time OLR counts, FIVE only charges sexual assault count. The new on which prevailed involving OLR were three counts tasteless sexual comments that Kratz made to two co-workers. The co-worker in Counts 5 and 6 acknowl- edged that Kratz's comments were out of apologized character and that and told inappropriate her his comments were and he should not have made them. The co-worker in Count 7 also said Attorney Kratz's comment was out of character.
V years following complaint In the S.VG.'s to police, Attorney the Kaukauna Kratz was forced to resign County Attorney. as Calumet District He went
through car. He his home and his was a divorce. He lost United States District Court S.VG. in the sued bankruptcy. It is He filed for the lawsuit.7 settled pay any position unlikely Kratz is in extravagant costs These will $23,904.10 in court costs. hardship pose Kratz, be cannot a serious prosecution, justified and are of the OLR on basis manifestly unfair.
VI case underscores the need for 98. The Kratz practices procedures. thorough review of OLR *27 investigation against ¶ First, OLR closed the 99. knowledge of the OLR Kratz without happen?8 did that director, Keith Sellen. How investigation, reopening ¶ Second, 100. after complaint against to file a Attor- OLR took 13 months justification lengthy ney for this Kratz. is the What delay? long investigation, filed Third, after a OLR 101. against Attorney Kratz that it
three sensational counts
proof. Why did OLR's Pre-
later dismissed for lack of
7
(E.D.
Kratz,
S.V v.
10-C-919,
violations were then obviously a mistake. liminary permit Review Committee these counts to be Preliminary serving filed? Is the Review Committee its purpose screening improvident charges intended out approves percent it when of the OLR staffs recom- mendations?9 expects Attorney pay Fourth, OLR Kratz to improvident prosecution
all costs related to the of its charges discipline. and its harsh desired level of Should respondent attorney expected pay be OLR's costs charges proven discipline for that are not and a level of sought imposed? but not appears unwilling Fifth, OLR to be or drop charges
unable to it has filed unless it acknowl- edges charges proved. likely that the cannot be It could have settled the Kratz matter much sooner if it had bargain something been able to less than uncondi- authority plea tional surrender. Should OLR have the bargain respondents? so, If under what condi- tions? questions
¶ 104. No doubt other could be raised handling apart about OLR's of the Kratz case. But from single many this case, there are reasons for this court to thorough strictly objective launch a of the — —review agency. something If that review is undertaken, useful may yet tragedy. come out of this unfortunate *28 percent approval A 98 percentage rate is the OLR Director Keith recently 25, 2013, Sellen cited in his testimony October on Rule Petition 13-04 supreme before the court.