Appendix — Heilprin v. Wisconsin Board of Attorney's Professional Responsibility

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

92-329 FIU.ED

| AUG 3 1992

No. OFFICE GF THE CLiRK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

RICHARD A. HEILPRIN,

Petitioner,

VY.

WISCONSIN BOARD OF ATTORNEY'S

PROFESSIONAL RESPONSIBILITY,

Respondent.

APPENDIX TO THE PETITION

FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF WISCONSIN

JOHN H. BOWERS®

214 West Mifflin Street

Madison, Wisconsin 53703

(608), 256-9031

MICHAEL RILEY and

ALAN G. B. KIM, JR.*®

411 West Main Street

Madison, Wisconsin 53703

(608) 257-4715

*Counsel of Record

*k*xCounsel for Petitioner

APPENDIX

TABLE OF CONTENTS

Page

Reported Opinion of the Supreme.... 32

Court of Wisconsin, Disc.

Proceedings Against Heilprin,

168 Wis. 2d 1, 482 N.W.2d

908 (1992)

Report and Recommendation of........ 46

Referee to the Supreme

Court of Wisconsin in the

Matter of Disciplinary

Proceedings Against Richard

A. Heilprin, No. 98-0503

(filed April 24, 1992).

Appellant's Brief to the Supreme....94

Court of Wisconsin (cover

and portion of argument

section)

Complaint Filed by the Wisconsin...110

Board of Attorney's .

Professional Responsibility

Reported Opinion of the Supreme....129

Court of Wisconsin, State

v. Heilprin, 59 Wis. 2d 312,

207 N.W.2d 878 (1973)

WE GOR 20t8 Gi cwnc cea sces eecccces 155

Sec. 256.28, WIS. STATS. (1972)....159

IN THE MATTER OF DISCIPLINARY PROCEEDINGS

Against RICHARD A HEILPRIN, Attorney at Law

Case No. 90-0503-D

SUPREME COURT OF WISCONSIN

Decided May 5, 1992

Reported in 168 Wis. 2d 1 and

482 N.W.2d 908

PER CURIAM

For the appellant there were briefs by

Michael Riley and Atterbury, Riley, Luebke

& Pretto, S.C., Madison.

For the respondent there was a brief

by Kitty K. Brennan and Murphy and Brennan,

South Milwaukee.

This is an appeal from the report of

the referee recommending that the license

of Attorney Richard A Heilprin to practice

law in Wisconsin be suspended for 18 months

as discipline for professional misconduct.

That misconduct consisted of his having

directed sexually explicit and suggestive

comments and question to two women clients

during office conferences. Attorney

Heilprin specifically appealed from the

referee's conclusion that by doing so he

violated that portion of the Attorney's

Oath, set forth in SCR 40.15, by which an

attorney swears to "abstain from all

offensive personality." Attorney Heilprin

also appealed from the referee's assessment

of the credibility of the two clients who

testified at the disciplinary hearing

concerning his conduct as well as his own

credibility in the disciplinary proceeding.

We adopt the referee's findings of

fact concerning Attorney Heilprin's conduct

but, contrary to the referee's conclusion

of law that such conduct violated the

Attorneys Oath, we conclude that it

violated that very standard of attorney

professional conduct we enunciated in 1973

in a case involving the same attorney,

Disciplinary Proceedings Against Heilprin,

59 Wis. 2d 312, 207 N.W.2d 878. There, the

court suspended Attorney Heilprin's license

for an indefinite period until he could

establish recovery from a personality

disorder that arguably resulted in his

having talked obscenely, made indecent

gestures, indecently exposed himself and

made indecent sexual proposals to two women

clients.

This is not to say that Attorney

Heilprin's conduct in this proceeding did

not constitute "offensive personality"

proscribed by the Attorney's Oath!’ but it

"SCR 20:8.4 and its predecessor

establish a violation of the Attorney's

Oath as professional misconduct. In

addition, under these _ rules, 2G 0C 4

professional misconduct for a lawyer to

"violate a statute, supreme court rule,

renders it unnecessary that we address

Attorney Heilprin's arguments that the

"offensive personality" language of the

Attorney's Oath is unconstitutionally vague

or overbroad when applied to an attorney's

professional conduct.

By repeating the type of professional

misconduct for which his license’ had

previously been suspended and because of

the nature of that misconduct, Attorney

Heilprin has established his unfitness to

continue to be licensed by this court to

represent others in the legal system He has

again demonstrated his willingness, if not

propensity, to place his person prurient

interests above the interest of those

seeing his counsel in legal matters, which

he did on not one but two occasions.

Supreme court order or supreme court

decision regulating the conduct of

lawyers." SCR 20:8.4(f).

eS...

Certainly, the public should not be

subjected to such offensive behavior

conducted under the authority of a license

to practice law.

Accordingly, we do not accept the

referee's recommendation of discipline to

be imposed for Attorney Heilprin's

misconduct. We revoke his’ license to

practice law in this State.

Attorney Heilprin was licensed to

practice law in Wisconsin in 1959 and

practiced in Madison but has left the state

and now resides in Seattle, Washington. He

has previously been disciplined three times

for professional misconduct. As previously

noted in 1973, the court suspended his

license to practice law as discipline for

the conduct mentioned and for rude,

discourteous, offensive and abusive conduct

toward clerk of court personnel, an adverse

party and others. In 1981, Attorney

Heilprin consented to a private reprimand

from the Board of Attorneys Professional

Responsibility for “offensive personality"

and repeatedly asking a woman divorce

client explicit questions about her sexual

behavior. In 1984, the court suspended his

license for 60 days as discipline for

having contacted directly an adverse puny

represented by counsel, taking an action on

behalf of a ciient merely to harass an

adverse party’s counsel and engaging in

conduct involving misrepresentation to

harass that counsel. Disciplinary

Proceedings Against Heilprin, 123 Wis. 2d

394, 367 N.W.2d 217 (1985).

The referee in this proceeding, the

Hon. Timothy Vocke, reserve judge, made the

following finding of fact. On June 17,

1987, Attorney Heilprin met with a woman in

his office concerning an automobile

accident that had occurred and as a result

of which she had suffered personal

injuries. Much of the initial Interview

was recorded by a reporter and after the

reporter had left, Attorney Heilprin asked

the woman questions of a more personal

nature, including whether she adopted

certain positions when engaging in

intercourse and whether she engaged in a

certain type of sexual activity. At a

subsequent meeting, Attorney Heilprin asked

the client similar questions and made

suggestive comments concerning her sexual

practices and activity.

At a third meeting which the client

attended in the company of her young

daughter, Attorney Heilprin answered a

telephone call and began making sexual

comments over the telephone in the presence

of his client and her daughter, whereupon

the two of them left the office until he

finished the call. The client then

terminated the attorney-client relationship

by telephone, followed by a letter in which

she stated in part "l have been very

uncomfortable in your presence because of

your sexual behavior... ."

The referee specifically found that

Attorney Heilprin's statements and

questions of a sexual nature directed to

the client were not relevant to any loss of

consortium claim the client may have had as

a result of the personal Injuries’ she

incurred in the auto accident. Rather, the

referee found, they "simply exhibited an

excessive prurient interest on his part.

In a second matter, a woman met with

Attorney Heilprin in March, 1988 concerning

an accident in which she had suffered

personal injury. During two conferences

Attorney Heilprin asked her sexually

explicit questions concerning her physical

attributes and her sexual practices. Again

the referee found that none of Attorney

Heilprin's questions and comments

constituted a legitimate inquiry into a

potential loss of consortium claim m a

result of the client's personal injury but

simply demonstrated his prurient interest

in her private life. Following the second

meeting with Attorney Heilprin the client

obtained other counsel to represent her.

With respect to a third allegation of

professional misconduct in the Board's

complaint the referee found that there was

no clear and convincing evidence that

Attorney Heilprin had engaged in a conflict

of interest when a settlement on behalf of

a client became involved with a potential

that opposing counsel would file a

grievance with the Board. The referee

concluded that Attorney Heilprin's conduct

in the matter did not violate any of the

ethical proscriptions.

In his’ appeal, in addition to

asserting the unconstitutionality of the

"offensive personality" language of the

Attorney's Oath, Attorney Heilprin argued

that the referee erroneously weighed the

credibility of the two women clients

concerning his sexually oriented questions

and comments against the credibility of his

own testimony contradicting theirs. We

reject that argument. The referee

exhaustively discussed his assessment of

the credibility of the women's testimony

and the credibility of Attorney Heilprin's.

The referee also considered Attorney

Heilprin's comportment during the lengthy

disciplinary proceeding including what the

referee termed numerous "absolutely

meritless motions," deliberate disobedience

of various orders of the referee, verbal

threats of legal action against various

participants and failure to cooperate in

the timing of hearings and discovery.

We also reject as without merit

Attorney Heilprin's argument that, because

the Board did not present testimony

corroborating the statement of the two

former clients, it failed to establish by

clear and convincing evidence that he

engaged in conduct warranting disciple.

Likewise without merit is his contention

that the referee's refusal to permit him to

present witnesses to testify concerning the

credibility of the women and limitation of

their cross-examination on matters relating

to credibility deprived him of the

opportunity to provide evidence needed to

resolve the credibility issue.

We adopt the referee's findings of

fact and conclude that Attorney Heilprin's

conduct violated the standard of attorney

professional conduct enunciated in

Disciplinary Proceedings Against Heilprin,

59 Wis. 2d 312, 207 N.W.2d 878 (1973). For

the reasons set forth above, we do not

accept the referee's recommendation of an

18-month license suspension as discipline

for Attorney Heilprin's misconduct. We

revoke his license.

The court afforded Attorney Heilprin

the opportunity to show cause why his

license to practice law in Wisconsin should

not be revoked as discipline for his

professional misconduct. Nothing in his

response has persuaded the court that

discipline less than revocation is

warranted. In - that response, Attorney

Heilprin continued to contend that the

offensive personality language of the

Attorney's Oath is unconstitutionally vague

and that the referee based his findings of

misconduct on the testimony of two persons

whose credibility the referee had

difficulty in assessing.

IT IS ORDERED that the license of

Richard A. Heilprin to practice law in

Wisconsin be revoked effective the date of

this order.

IT IS FURTHER ORDERED that within 60

days of the date of this order Richard A.

Heilprin pay to the Board of Attorneys

Professional Responsibility the costs of

this disciplinary proceeding.

IT IS FURTHER ORDERED that Richard A

Heilprin comply with the provisions of SCR

22.26 concerning t. 2 duties of a person

whose license to practice law in Wisconsin

has been revoked.

ABRAHAMSON, J., did not participate.

STATE OF WISCONSIN 1N SUPREME COURT

In the Matter of the Disciplinary

Proceedings Against:

REPORT AND RECOMMENDATION

OF REFEREE

RICHARD A. HEILPRIN,

Attorney at Law,

Case No. 90-0503 D

Respondent.

This matter was commenced by the

filing of a Complaint, an Order to Answer

and an Affidavit of Service in the Supreme

Court of Wisconsin on 12 March 1990. After

several requests for an extension of time

to file Responsive Pleadings, an Answer

dated 7 May 1990, was then filed by the

Respondent.

The undersigned was appointed as

Referee, by Order of the Supreme Court on

12 March 1990, pursuant to SCR 21.9 (4)

(1988).

Attorney Kitty K. Brennan appears for

the Board of Attorney's Professional

Responsibility (Board). Attorney Richard

A. Heilprin (Heilprin) has’ largely

appeared in his own behalf, although

Attorney Michael Riley appeared with him

and argued the motions heard at on 30

October 1990 as Well as during various

telephone hearings. Additionally, Attorney

Riley occasionally was present at the fact

finding hearing on the merits held in

Madison.

In his Answer, Heilprin admitted that

the Board had jurisdiction under Chapter 21

of the Supreme Court Rules and, further,

that he was an attorney duly licensed to

practice law in the State of wisconsin.

In addition to filing an Answer with

10 Affirmative Defenses, Heilprin filed a

Motion to Grant Jury Trial and a Three

Count Motion to Dismiss on 7 May 1990. The

Motion to Grant Jury Trial was denied by

written order on 8 May 1990. The Motion to

Dismiss, incorporated many of Heilprin's

Affirmative defenses.

A scheduling conference - not on the

record - was held by phone on 22 May 1990,

at which time Heilprin tried to again raise

his claim that he had a right to a jury

trial; he and counsel for the Board were

referred to the undersigned's Order of 8

May 1990. Subsequently, Heilprin made a

request for substitution and/or recusal

against the Referee; an Order denying his

Motion for Substitution Recusal was signed

on 4 June, 1990, and filed. Various

motions, having to do with discovery, were

filed and a hearing was held, in Madison,

on the record on 13 July, 1990.

A Scheduling Order Was entered on 26

July, 1990, setting a motion hearing for 29

and 30 October, 1990, on Heilprin's Motions

to Dismiss, as well as a fact finding

hearing on the Board's Complaint commencing

18 March, 1991. Subsequently, the parties

agreed that the motion hearing set for

October could be based upon the discovery

then extant, and that there would be no

need for live testimony. As a result, the

time for the motion hearing was reduced

from two days to part of one day. The

Board and Heilprin both filed Briefs on 26

October, 1990, and oral arguments, as to

the Respondent's various Motions to

Dismiss, were held on Tuesday, 30 October,

1990, in Madison.

Subsequently, the Board and Heilprin

were informed by a letter dated 31 October,

1990, that no recommendation as to the

Motions to Dismiss would be drafted and

filed until after the final hearing was

held.

Heilprin requested that the Supreme

Court either order the Referee to decide

the motions or render a decision itself

Prior to the hearing on the merits, and the

Court declined to do so in an order dated

11 December 1990.

A hearing was held at the Dane County

Court House beginning on 19 March 1991. The

Board appeared by Attorney Brennan and the

Respondent appeared in person representing

himself. Attorney Riley appeared

periodically but played no major part in

the Proceedings. The hearing lasted until

midday on 21 March. The Board called the

following witnesses: Beverly Tate, Ruth

McSherry, Judge Kent C. Houck of Richland

County, Attorney David Easton, Attorney

John Rothstein and Attorney Jeffrey

Kremers. After the Board rested, the

Respondent testified in own behalf and

called as witnesses the following: David

Mann, Joseph Klein, and Attorney David

Mandell whose testimony was struck in its

entirety on the grounds that the subject

matter of the testimony violated a previous

order.

MOTIONS TO DISMISS

Heilprin filed three Motions’ to

Dismiss on or about 7 May, 1990. He

incorporated into the Motions 10 separate

Affirmative Defenses that he had plead

contemporaneously.

Heilprin produced evidence relevant to

the Motions to Dismiss in the form of:

An affidavit by Attorney Daniel

Hildebrand, an affidavit by Attorney Keith

Kaap, the deposition testimony of Gerald

Sternberg, part of the Deposition of an

Attorney Bolt, and Heilprin's own

Affidavit, which incorporated various

exhibits. Additionally, there was filed

and considered the affidavit of

Attorney James Clark, the Chairperson of

District 2 Professional Responsibility

Committee. Additionally, the Board

submitted Briefs dated 1 June, 1990, and 26

October 1990, and Heilprin submitted Briefs

dated on or about 7 July, 1990, and 26

October, 1990.

A hearing was held at the State Bar

Headquarters on 30 October, 1990, at which

time arguments were made in behalf of

Heilprin by Attorney Riley, and in behalf

of the Board by Attorney Brennan.

As to Counts I and II of the Board's

Complaint involving the Tate and McSherry

matters, Heilprin has moved to dismiss

based upon alleged constitutional

infirmities as to that part of the

Attorney's Oath contained in SCR 40.15,

which specifically states: "I will abstain

from all offensive personality. oe a ™ 5

Heilprin moved to dismiss the Tate and

McSherry matters, as well as the Rothstein

matter contained in Count III, on the basis

of alleged violations by the Board of the

rules under which the Board is to operate

in conducting an investigation.

Heilprin argues that the term

“offensive personality" is too broad a term

to put an attorney on notice as to what

kind of conduct is'7 prohibited. The

undersigned agrees with that part of Mr.

Riley's argument that the’ statements

allegedly made by the Respondent, as to

Tate and McSherry, must be considered in

the context in which they were made. The

undersigned also agrees that the Attorney's

Oath is to guide an attorney only in his

capacity as an attorney. As to Tate and

McSherry, without hearing evidence, there

waS no way to determine exactly what the

context of the alleged statements were; it

is clear, however, that the statements were

made in the context of an attorney/client

relationship.

COUNTS I AND II; TATE AND MCSHERRY

1. Heilprin claims that he is legally

deprived of his constitutional right to a

trial by a jury. The Supreme Court has

ruled in the matter of Complaint Against

Seraphim, 97 Wis.2d, 845, 294 N.W.2d, 485

(1980), that a judge, charged with official

wrong doing under the rules pertaining to

a judge, has no right to a jury trial. By

analogy, the Courts ruling in Seraphim is

on point in the present case. It is the

Supreme Court of the State of Wisconsin

that is the adjudicator in this grievance

procedure against Heilprin, not the Board

of Professional Responsibility and not the

Referee. Heilprin's constitutional rights

are not violated by the failure to impanel

a fact finding jury. No damages are

sought, no criminal PenaltY is requested;

Heilprin's status as an attorney is being

reviewed. Thus Heilprin has no right to a

jury trial made up of laymen.

as Heilprin argues that his

constitutional rights of free speech are

impinged upon by subjecting him _ to

sanctions for violating that part of the

Attorney's Oath which prescribes “offensive

personality." However, the practice of law

is a licensed profession in the State of

Wisconsin. The Supreme Court of Wisconsin

has the authority to determine who it deems

fit to practice law within the State. The

practice of law is a privilege and not a

right. This particular argument by

Heilprin was also considered in the

Seraphim case when the Supreme Court

indicated, in regards to Seraphim's claim

of a lack of equal protection, that: "It

is well established that judges, in company

with other public servants, must suffer

from time to time such limits on those

rights as are appropriate to the exercise

and given situations of their official

duties or functions."(494.) An attorney,

no less than a judge, is an officer of the

court and, thus, in return for the

Privilege of practicing law, he or she may

very well have to give up certain rights

under the laws and Constitutions of the

United States and the State of wisconsin

while acting in their capacity as an

attorney. There is a quid pro quo and,

thus, Heilprin's argument on this point

must also fail.

3 Heilprin claims that the term

"offensive personality" is so vague as to

fail to put him, or any other attorney on

notice as to what kind of conduct he is

prohibited in engaging in. He indicates

that, as used in this grievance, its

vagueness approaches and exceeds the Point

where it becomes unconstitutional. It is

the Respondent's burden of proof to show

the unconstitutionality of a statutory

provision beyond any reasonable doubt. SCR

40.15, the Attorney's Oath, says in part

"I will abstain from all offensive

personality. . ." SCR 20.04 (1984) states

in part "A lawyer shall not: (1) violate

a disciplinary rule or the attorney's

oath." SCR 20:4.4, states in part "lt is

professional misconduct for a lawyer to:

(g) violate the attorney's oath." The

language concerning “offensive personality"

has been part of the oath since Chapter 179

laws of 1909. In State v. Eisenberg. 48

Wis.2d, 364, 180 N.W.2d, 529 (1970), both

attorney Allen Eisenberg and attorney

Sidney Eisenberg were disciplined by the

Supreme Court for violating the oath which

was then at sec. 256.29 Wis. Stats. The

Court dismissed all challenges raised by

the Eisenbergs to the oath, including

challenges based upon Article 1, Sections

1, 13 and 22 of the Wisconsin Constitution,

and the Fourteenth Amendment to the United

states Constitution, for vagueness’ and

overbreadth, as well as the First

Amendment. The Supreme Court has also

disciplined attorneys in other cases for

violating the oath. State v. Ledvina 71

Wis.2d, 195, 237 N.W.2d, 683.

The complained about conduct in this

case concerns itself with allegedly

inappropriate comments of a sexual nature

made to two of Heilprin's clients. In

1973, Heilprin was disciplined by the

Supreme Court for two similar incidences in

which he made obscene remarks, proposed

sexual intercourse and made other indecent

sexual proposals. Heilprin, of all

attorneys, should be perfectly aware as to

whether the conduct complained of in this

grievance proceeding is offensive or not.

Additionally, as aptly pointed out by

counsel for the Board, neither of the two

words in this phrase is at all ambiguous

and both words are in common usage by the

public in general and attorneys’ in

particular. The proscription is broad, but

not overly so, much like the criminal

prohibition against "disorderly conduct."

That part of Section 947.01, referring to

"otherwise disorderly conduct", has been

challenged on constitutional grounds as

being overly broad and the Courts of the

State of Wisconsin have concluded that the

prohibition is constitutional.

Heilprin has failed to bear his burden

of proof, and this challenge must fail as

well.

4. Heilprin has also alleged that the

Board has impermissibly failed to follow

its own Procedural rules, but he

fails to specifically allege which of the

rules contained in Chapters 21 and 22 of

Supreme Court Rules have been violated.

Recommendations made by Board staff, the

Board Administrator, District Disciplinary

Committees, and attorney investigators are

advisory. The Supreme Court oe previously

ruled that due process does not obtain

until a formal complaint is filed. Until

that time, the respondent attorney is

entitled to "fairness". Even the Report

and Recommendation of a Referee is advisory

to the Supreme Court. It is the Supreme

Court of the State of Wisconsin that

determines if a violation has occurred and,

if so, what the appropriate sanction is.

The various investigative arms of the

Board are not required to completely

examine a grievant's background, permit the

respondent attorney to ask questions, ask

specific questions suggested by the

respondent attorney, keep specifically

detailed notes, interview all available

witnesses, or always have a hearing with

live testimony. For example, in the

Rothstein matter, the committee had a court

transcript available. What Heilprin

apparently feels he is entitled to is a

full-blown hearing at every level of

investigation, including the right to

testify, call witnesses, cross-examine

witnesses, call expert witnesses, and

determine what evidence the investigative

body be allowed to examine, as well as

determine what kinds of evidence the

investigative body not be allowed to

examine.

Despite Heilprin's assertion to the

contrary, it appears that an appropriate

quorum was present when the committees

voted on the Tate, McSherry and Rothstein

matters. Heilprin has had ample

opportunity to present his side of these

matters up until the time that’ the

complaint was’ filed. In light of

Heilprin's position, vis a vis his demand

for a jury trial and his inquiry as to

whether or not he could file a counterclaim

as part of this grievance procedure, his

credibility as to his assertion that he has

been scmehow prejudiced by the Board

failing to file its own rules is

questionable. 1t appears more likely that

Heilprin wants the Board to simply leave

him alone to practice law and to act as he

chooses and, failing to convince the Board

of that position, then he Wants to have the

entirety of the investigative process

turned into an adversary proceeding.

Heilprin received ample opportunity to

respond to the Board's concern in these

three investigations and I find no merit

to any of his Motions to Dismiss. The

Supreme Court stated in State v. Hersch,

73 Wis.2d, 390, 243 N.W.2d, 178 (1976):

"We held that an attorney's constitution of

due process right involved only his right

to prior notice of charges, his right to

prepare to defend these charges and his

right to a full hearing on these charges."

These rights obtain upon the filing of a

formal complaint before the Supreme Court

of the State of Wisconsin.

FINDINGS OF FACT

CREDIBILITY

As to the Tate and McSherry

Complaints, the relative credibility of the

two complainants and Attorney Heilprin are

at issue.

There were several rather common means

available to test the credibility of the

three. For example:

1. Was it more likely that Heilprin

made the statements that he is accused of

because he had been accused of and found

guilty of similar violations of Supreme

Court Rules in the past?

2. Was it more likely that Heilprin

made the statements that he was accused of

because there were two witnesses with

similar complaints?

3. Because Tate also made extremely

disparaging complaints about her husband,

Reverend Lenentine, Attorney William

Wenzel, and Attorney Winston Binstock, was

it probable that she was simply taking out

her anger as to these four on Heilprin,

especially in light of the fact that at

their third meeting Heilprin apparently for

the first time told her that her daughter

had a potential cause of action against her

for her personal injuries arising out of

the accident with Reverend Lenentine's son,

and that he would have a conflict of

interest in representing both of them?

4. Was it probable that in light of

McSherry's lack of formal education and

intelligence she was likely to be

influenced to file a complaint against

Heilprin because she was contacted by

telephone by Tate?

All four of the foregoing potential

tools for assessing credibility were

rejected for being too simplistic and,

therefore, probably wrong.

Using the normal tool of a trial judge

or trial attorney in assessing credibility

based upon demeanor at trial was also of

questionable value. Tate was an extremely

hostile, angry, and argumentative witness.

As a practicing attorney, the undersigned

is always wary of clients who appear to be

unusually hostile, and especially of

clients who come into the office bitterly

complaining about other attorneys, as did

OO ae es

Tate. On the other hand, Heilprin also

exhibited anger and hostility during the .

hearing, whether he was acting in the

capacity of an attorney or a witness. On

the surface, Heilprin's demeanor in

testifying was that of a person testifying

to the truth. He looked directly at the

undersigned, he seemed relaxed, and he

maintained good eye contact. However,

during the course of his own testimony, he

gave a virtual seminar on what body

language to utilize in assessing the

credibility of a witness and, therefore,

because of his obvious expertise, his own

body language could not be used as a

barometer of credibility.

In the case of McSherry, one of the

normal tools in assessing credibility -

that of examining the clearness or lack of

clearness of recollections - was not

particularly valuable simply because she

was admittedly intellectually impaired and

under educated. Her testimony style was

interesting; she appeared to be totally

guileless, very simplistic and very

straight forward. She did not over commit

with her answers. She did not exaggerate

and she did not seem to have any interest

whatsoever in making herself look good.

She simply answered questions as best she

could, admitting that her memory of dates

was poor.

One wonders why any woman would return

not once, but twice, to an attorney who

allegedly made sexually inappropriate and

offensive comments. In Tate's case, she

indicated that she felt uncomfortable at

the time, but that she trusted "God,

ministers and lawyers". McSherry indicated

that she simply looked away from Heilprin

when he delved into subject matter that

made her feel uncomfortable. She acted

Similarly at the hearing.

Was McSherry's credibility damaged

because she admittedly made no mention to

anyone other than Heilprin that the very

individual who ran into her while she was

a pedestrian subsequently later sexually

assaulted her? There are. however, many

reasons why a person would not report a

sexual assault, including fear of the

person who did it, fear of the authorities,

embarrassment, which Mcsherry indicated was

the case in her instance, or ignorance as

to what to do or whom to go to. Thus, her

failure to discuss the sexual assault with

anyone other than Heilprin did not imply

that she was a liar.

One has a difficult time understanding

why any woman would allow herself to be

subjected to the sexual questions and

comments allegedly made by Heilprin to both

McSherry and Tate without getting up and

walking out. But, it is equally difficult

to understand why any attorney would

continue to engage in a private

conversation with a woman client who made

inappropriate and offensive sexual comments

as Heilprin claims that McSherry did.

Because all of the foregoing tools in

assessing credibility raised more questions

than answers and, thus, were inconclusive,

other indicia in assessing credibility were

used.

The undersigned has had this case for

approximately one year and, during that

year, has had more extensive contact with

this particular respondent than in any

other disciplinary proceeding in the last

four Years. There were numerous hearings

both in person and by conference call. The

undersigned was the recipient of a

seemingly never ending series of motions

and correspondence from and between

counsel. During the course of this

proceeding, Heilprin has shown himself to

be extremely suspicious and paranoid; at

the fact finding hearing, on_ several

occasions, he indicated that he had been

"framed" and he indicated that there was a

"conspiracy" to get him. During the course

of these proceedings he has:

i. Made absolutely meritless

motions;

2. He has prolonged and protracted

these proceedings by drastically over

stating the amount of time necessary to

prepare;

3. Ke has made extravagant claims as

to the amount of discovery that he intended

to do;

4. He has overstated the amount of

hearing time that would be necessary;

. ¥ He named an excessive amount of

potential witnesses, many of which he

indicated would testify on subject matters

so far removed from the merits of this case

so that he must have Known that their

proposed testimony would have been patently

irrelevant and inadmissible;

6. He has deliberately disobeyed

various orders and then claimed that he was

being victimized;

7. He has verbally threatened various

participants with lawsuits; and

8. He has attempted to deflect this

inquiry away from the merits by verbally

attacking others, refusing to comply with

discovery orders, by failing to cooperate

in the timing of hearings and discovery and

by attempting to introduce extraneous and

nonrelevant issues into the Proceedings.

At the fact finding hearing itself, he

deliberately disregarded an order of the

undersigned and attempted to put into the

record testimony of a nature that had

previously been ruled objectionable and

non-admissible.

All of the foregoing actions of the

respondent had a direct bearing on his

credibility and, thus, Heilprin's testimony

was given limited weight when it

contradicted the testimony offered by the

Board on the Tate and McSherry Complaints.

COUNT I - TATE COMPLAINT

Beverly Tate is a 52 Year old woman

who was involved in an automobile accident

— .- °° °° °° ° ° °°; : a

with Paul Lenentine on i September 1986.

She had major injuries, including having

her throat ripped open, lacerations to her

head and leg, and her foot crushed. She

spent over 15 hours in surgery and two and

a half months in the hospital.

She made a telephone call appointment

to see Attorney Heilprin on 15 June 1987,

and she met him in his office on 17 June

1987. A great deal of Heilprin's initial

interview with Tate was recorded by a

reporter. After the reporter left,

Heilprin proceeded to ask questions of a

more personal nature, not simply on the

legitimate issue of loss of consortium, but

also as to whether or not she had her legs

in the air when she had sexual intercourse;

and whether or not she did oral sex.

Subsequently, on 16 July 1987, he met with

her again and asked similar questions, such

as: if she was going to have an affair,

what kind of man would she have an affair

with?

He further asked her how many climaxes

she had and made a statement to the effect

"I bet your nipples get really hard".

She indicated that she did not know how

either comment was related to the motor

vehicle accident, but she was intimidated

by Heilprin and although she felt that she

did not want to see him again, she

continued as his client.

On 19 April 1988, she again came in

with her young daughter, Christine, and in

the middle of that particular interview,

Heilprin took a telephone call where he

again started making sexual comments in

their presence with the person on the

telephone. Tate testified that she and her

ee ee ee ee ee

daughter left until he was finished with

the telephone call.

She terminated the relationship by a

telephone call to Heilprin on 29 April

1988, followed by a letter of 2 May 1988,

in which she indicates in part "I have been

very uncomfortable in your presence because

of your sexual behavior. . ."

The various statements and questions

of a sexual nature made by Heilprin to Tate

were not relevant to a loss of consortium

Claim and to the contrary simply exhibited

an excessive purient interest on his part.

COUNT II - MCSHERRY COMPLAINT

Tate admitted that she called

McSherry, but denied that

she advised McSherry to file a grievance

against Heilprin. She indicated that she

Simply indicated that she had heard that

McSherry had problems with Heilprin and

inquired if it was true.

McSherry is a 43 Year old woman who is

married, but has been separated from her

husband for seven Years. She Participated

in special education and went to the

equivalent of third grade. On 10 September

1985, as a pedestrian, she was hit by a

car. She went to several attorneys ending

up with Heilprin, in fact indicating that

she was "running around town" looking for

an attorney.

S’e saw Heilprin twice between the

middle of March and early April. She could

not read the Complaint to the Board that

she had signed. She did, however, believe

that the signature was hers. Heilprin

invited the undersigned to compare that

Signature with the signature on the

Contingent Fee Agreement dated 31 March

—

1988. Although the undersigned is no expert

in handwriting, the signatures did appear

to be made by the same person.

Heilprin testified and for that matter

stated in a letter dated 24 February 1989,

which was entered as Respondent's Exhibit

20, that McSherry evinced a preoccupation

with her pubic area, as well as her

breasts. He testified that she told him

she liked to pick up men at the bar and

then go home and have sexual intercourse

with them. He indicated that in fact she

seemed quite happy to talk about her sexual

exploits referring to an individual who

wanted to take her to Dubuque,-= she

allegedly volunteered: "He wants to fuck

me, Dick".

Contrary to Heilprin's perception.

McSherry seemed to be uncomfortable at the

hearing when discussing the sexual comments

that were allegedly made. Interestingly,

Heilprin did not ask her on

cross-examination whether it was she rather

than he, as he claimed, that made the

various sexual comments. It is also

interesting to note that while claiming

that there was a conspiracy to engineer

this grievance procedure against him, he

deposed none of the persons that he claimed

were engineering the grievance in the

approximate year that this matter was

pending.

If it was in fact McSherry who was the

author of the sexual comments rather than

Heilprin, Heilprin would have logically

either terminated the interview or had a

secretary or some other third person sit in

on the interview as a witness.

Heilprin did in fact ask McSherry

whether her pubic hair was the same color

as the hair on her head; he did comment

that he bet that her nipples were big brown

and soft and at their second appointment,

he made comments to the effect that:

A. He bet she was the kind of woman

who would let a man play with her clit:

B. He bet that she liked to give

head; and

C. He bet that she liked to get ona

man and ride him real slow and then when

she came, ride real fast.

None of the questions and comments

constituted a legitimate inquiry into a

potential loss of consortium claim and

again simply demonstrated Heilprin's

purient interest into the Private life of

a client.

COUNT III - ROTHSTEIN COMPLAINT

On 29 October 1986, Attorneys John

Rothstein and Heilprin were engaged in a

deposition of a Mr. Dalloz in Chicago. At

the end of the deposition, an incident

occurred which led Rothstein to insert the

probability of his filing a grievance

against Heilprin into the settlement

negotiations on the Mann case, which

occurred on 31 October 1986, and 1 November

1986. It is likely that if Attorney

Rothstein had been more self confident and

assertive, or if Attorney Heilprin had been

less belligerent, the matter would have

ended on 29 October.

Normally, transcripts of judicial

proceedings are an ideal way of determining

what has occurred. However, Judge Kent C.

Houck himself testified that the transcript

in the Mann v. International Harvester case

was suspect. He indicated that the court

reporter had been replaced, that Exhibit 6

was a "poor transcript", and the court

reporter had the wrong participant making

statements throughout the transcript.

heviewion the transcript of the hearing

made in Judge Houck's chambers on 31

October 1986, it is clear that Judge Houck

was correct and, thus. it is not

appropriate to give as much weight to a

transcript as to the testimony of the

various witnesses who were present in Judge

Houck's chambers at the time.

There Was testimony by Attorneys

Easton and Heilprin, as well as David Mann,

that the tying together of the settlement

and the grievance were mentioned by

Attorney Rothstein and his partners. There

was testimony from all three that Heilprin

told his client, Mann, that he should make

a decision on settling the case in his own

best interests and not worry about Heilprin

because "I am a big boy and I can take care

of myself." There was testimony from all

three that Heilprin would absence himself

from any settlement discussions, leaving

that up to Easton. Heilprin left in the

morning to go "“antiquing" and did not

return until afternoon.

It is clear that Mann was loath to

subject Heilprin, to whom he was extremely

loyal as a client, to any grievance and he

did not want to leave the grievance matter

open while settling his own case. Judge

Houck testified that he believed the

failure to settle the case the morning of

31 October 1986, was related to money. He

testified that in the afternoon session he

thought that the problem was the conflict

of interest and that it was the plaintiff,

Mann, who held up the settlement.

It is clear that on 31 October 1986,

Heilprin was concerned about the Mann case

settling without resolving the grievance

against him. However, it is just as clear

from the testimony of Judge Houck,

Heilprin, Mann, and Easton that Heilprin,

as well as Easton, advised Mann that the

settlement of Mann's case should be made

based upon Mann's best interests and not

Heilprin's. Heilprin indicated to Judge

Houck that the Judge should interview Mr.

Mann and whatever Mann said he would abide

by. It is also apparent that part of the

discussion interposed by Heilprin had

nothing to do with the grievance, but

simply had to do with him wanting to

preserve his attorney lien, which he had a

right to do. Mann probably was reacting to

Heilprin's comments, but it was clear both

from the transcript and the testimony that

he was being told to make his own decision.

If Judge Houck had simply informed Heilprin

that he Should leave or, alternatively,

make no comments whatsoever, the case may

1ave very well resolved itself on the 3lst.

On 1 November 1986, the case in fact did

settle and it is clear that Heilprin had

nothing to do with the settlement and he in

no way obstructed Mann from reaching his

decision to settle the case.

Judge Houck, in his letter to Nancy L.

Warner at the Board dated 24 March 1987,

indicated in part: "Mr. Heilprin was aware

of the conflict of interest and sought to

remedy the situation by having Attorney

Easton take over representation of Mr.

Mann. Mr. Easton actively represented Mr.

Mann and advised him to settle without

regards to the grievance of Mr. Heilprin.

This representation included taking a

position in direct opposition to Mr.

Heilprin's point of view as to what could

be included in the settlement." Judge Houck

further indicates that: "seek Gid not

observe him do anything or say anything

that was inconsistent with Mr. Easton being

the attorney for Mr. Mann," and, further,

<hat the only way out of the conflict would

have been for Heilprin to totally withdraw

and Mann obtain other counsel, which would

have made an adjournment necessary. Judge

Houck then concluded that: "The next best

method of handling the conflict of interest

was to have Mr. Easton represent Mr. Mann

in the matter of the settlement. This was

done and ultimately resulted in Mr. Mann

settling the case without regard to the

BAPR complaint."

Attorney Easton's letter to Ms. Warner

dated 24 March 1987, is equally favorable

indicating his belief that Rothstein

PurposelY tied the settlement of the case

into the charge of professional misconduct

and that it was Mann who was adamant that

he did not want to settle the case and

require Heilprin to fend for himself.

Finally, Exhibit 8, which is a transcript

of a hearing in front of Judge Houck on 1

November 1986, in which he states: "Mr.

Heilprin has taken no part, no way

obstructed Mr. Mann in reaching his

decision."

CONCLUSIONS OF LAW

hs As to Count I, Heilprin has

violated SCR 40.13 of the Code of

Professional Responsibility, which

corresponds to SCR 40.15 under the Rules of

Professional Conduct as adopted 1 January

1988, and SCR 20.04 (1) of the Code of

Professional Responsibility, which

corresponds to SCR 20:8.4 (g) of the Rules

of Professional Conduct as adopted on 1

January 1988, by engaging in offensive

personality in violation of the Attorneys

Oath in his comments and questions to Mrs

Tate.

re As to Count II, Heilprin has

violated SCR 40.13 of the Code of

Professional Responsibility, which

corresponds to SCR 40.15 under the Rules of

Professional Conduct as adopted 1 January

1988, and SCR 20.04 (1) of the Code of

Professional Responsibility, which

corresponds to SCR 20:8.4 (g) of the Rules

of Professional Conduct as adopted on 1

January 1988, by engaging in offensive

personality in violation of the Attorneys

Oath as to his comments and questions to

Mrs. McSherry.

3. As to Count III, involving the

Mann case, the provisions of SCR 20.24 (1)

of the Code of Professional Responsibility,

which corresponds to SCR 20:1.7 (b) under

the Rules of Professional Conduct as

adopted 1 January 1988, are not applicable

to the factual situation whatsoever. Nor,

did Heilprin violate SCR 20.26 (1) of the

Code of Professional Responsibility, which

corresponds to SCR 20:1.8 (j}) of the Rules

of Professional Conduct as _ adopted 1

January 1988.

RECOMMENDATION

This is a complex case in part because

Attorney Heilprin is a complex individual.

During the course of the hearing, he

exhibited extremes of emotion that ran the

gamut from absolute outrage and anger to

exquisite joy. When he felt that he was

not getting his way, he became belligerent

and threatening. When a break was taken

during the middle of his testimony so he

could talk to his wife and he discovered

that she had received a hoped for job

opportunity in Washington, he wept tears of

joy for her good fortune. At times he was

Sarcastic and bombastic and at times he was

jovial, entertaining, and charming.

Attorney Heilprin is a man of extreme

emotional swings, which may be a cause of

some concern. ln his favor, he appears to

be an extremely competent, hard working and

dedicated advocate to his clients. One

only has to review the testimony of Mr.

Mann to see the kind of client loyalty

Heilprin is capable of inspiring.

Unfortunately, he appears to take his

advocacy to the point where he is

unnecessarily abrasive, intimidating and

apparently, based upon his own testimony,

not particularly popular with his peers at

the Bar.

As to aggravating factors, that which

is most important is that he has’ been

previously disciplined on two occasions for

Similar activity as charged in the Tate and

McSherry matters. Either he cannot control

his proclivity to be sexually explicit and

offensive with female clients, or he

refuses to understand that the First

Amendment to the United States Constitution

is not an absolute license to say anything

he wants to anyone he chooses at any time.

As an attorney, acting as an attorney, he

must come to understand that there are

legitimate limits put on his behavior.

The Board recommends a two year

Suspension. Heilprin points out that, in

his opinion, his behavior, even if a

violation of applicable Supreme Court

Rules, which he does not concede, is not

as severe as the attorney's behavior in the

Bruckner case. However, what he fails to

recognize is that he has been subjected to

discipline on three separate occasions.

1. In State v. Hei in, 59 wis.2da

312 (1973), his license was’ suspended

indefinitely for among other’ things,

obscene words and Propositions to clients;

2. In 1981, he accepted a Private

reprimand for offensive personality in

repeatedly asking a female divorce client

explicit questions about her sexual

behavior; and

3. In 1985, his license was suspended

for 60 days for actions factually unrelated

to the present complaints.

Thus, the Referee recommends that the

Supreme Court:

i. Suspend the license of the

respondent, Richard A. Heilprin, for 18

months; and

a. Tax the costs of these

proceedings against Richard A. Heilprin.

Dated at Rhinelander, Wisconsin this

24th day of April, 1991.

BY:

Timothy L. Vocke, Referee

Reserve Judge, State of Wisconsin

Post Office Box 1416

Rhinelander, Wisconsin 54501

Telephone: (715) 369-5029

Fax: (715) 369-7989

IN SUPREME COURT

Case No. 90-0503-D

In the Matter of the Disciplinary

Proceedings Against:

RICHARD A. HEILPRIN,

Attorney at Law,

Appellant,

Appeal from the Report and

Recommendation of the Referee

BRIEF OF APPELLANT

ATTERBURY, RILEY, LUEBKE

& PRETTO, S.C.

Michael Riley

Attorneys for Appellant

411 West Main Street

Madison, WI 53703

(608) 257-4715

RGUMENT

I. THE PHRASE “OFFENSIVE

PERSONALITY" IN THE ATTORNEY'S

OATH DOES NOT PROVIDE AN

APPROPRIATE BASIS FOR DISCIPLINE.

The complaints brought by the Board

against Attorney Heilprin based upon the

statements of Mrs. Tate and Mrs. McSherry

rest entirely on that provision of the

attorney's oath which reads: "I will

abstain from all offensive personality."

No independent violation of a specific

Supreme Court rule is alleged. Rather, the

Board seeks to elevate that language in the

code to the status of a disciplinary

standard based upon the provision in SCR

20.04 which states in pertinent part: "A

lawyer shall not violate a disciplinary

rule or the attorney's oath."

The Referee found that the decisions

of the Supreme Court in State v. Eisenberg,

48 Wis. 2d 364, 180 N.W.2d 529 (1970) and

State v. Ledvina, 71 Wis. 2d 195, 237

N.W.2d 683 (1975) authorized disciplinary

proceedings based solely upon the

attorney's oath. Moreover, the Referee

imposed upon Attorney Heilprin the burden

of proving beyond any reasonable doubt that

a prosecution under the referenced language

was unconstitutional. Those positions are

unsupported by the laws of this state.

Imposition of discipline based solely

on “offensive personality" does not comport

with the language or the spirit of the

decisions in this state respecting

appropriate basis for attorney discipline.

Those disciplinary proceedings which have

made reference to violations of the

attorney's oath have also cited violations

of parallel rules of conduct in support of

the discipline. The Board is attempting in

the present cases to impose discipline

based upon the broadest possible language

in the oath, language which finds no

equivalent in the rules of conduct. The

Court's ruling in this case will determine

whether not only Attorney Heilprin, but any

attorney in this State can be subject to

discipline solely for violating the broad

aspirational language of the oath without

more.

The particular language relied upon by

the Board is couched in terms that are more

appropriate for setting goals than setting

standards. While portions of the oath may

fairly be viewed as setting forth minimal

standards, that can scarcely be said of the

reference to offensive personality.

Affidavits were submitted from Attorneys

Hildebrand and Kapp highlighting that fact.

If lawyers are to be judged and found

wanting based upon offensive personality,

what limits are to be set upon that

judgment. Is the use of strong, if not

sexually explicit, language to be a fit

subject for discipline? Will the

recounting of jokes which do not meet the

current standards of good taste subject the

teller to suspension? Many of us exhibit

personal foibles that may be offensive to

others, and most of us have taken offense

at the speech or conduct of other lawyers

on more than one _ occasion. In each

instance where offense is given or taken,

are we placed in peril of discipline? The

language of the oath provides no guidance

on any of these issues, and who of us would

wish to be judged by this amorphous

standard.

The court may be tempted by the

alleged facts in this case to endorse the

expansion that the Board is seeking. That

cannot be done, however, except at great

expense to the fundamental principal that

rules which govern conduct ought to contain

some reasonably ascertainable standards.

The section of the oath upon which the

Board relies does not meet that test and

the Board ought not to be permitted to use

this case as a vehicle for obtaining a

broad endorsement of every fragment of the

oath as a standard of conduct. This is

precisely what the Board seeks and the

Referee's report and recommendation would

permit.

The Referee placed the burden upon

Attorney Heilprin to demonstrate the

unconstitutionality of a statutory

provision beyond a reasonable doubt. That

burden is inappropriate in this case. The

United States Court of Appeals for the

Seventh Circuit has held that where a

statute impinges on the exercise of First

Amendment rights, the burden of

establishing its constitutionality is on

its proponent. Wisconsin Action Coalition

v. City of Kenosha, 767 F.2d 1248, (1985).

Moreover, the thrust of the Wisconsin

courts rulings has always been that a

statute should be construed so as to avoid

constitutional objections, Jankowski v.

Milwaukee County, 104 Wis. 2d 431, 312

N.W.2d 45 (1981). The courts’ have

frequently construed statutes in a manner

which voids constitutional objections,

rather than simply rejecting all challenge

to the statutes. What the appellant seeks

in the present case is not the overthrow

sec. 20.04 or of the attorney's oath, but

100

ee we a ee

Simply the application of rational limits

to the manner in which the oath is used as

a basis for discipline. That approach was

approved by this Court in an earlier

decision, In re Cannon, 206 Wis. 2d 374,

240 N.W.2d 441 (1932), which is discussed

in detail below.

The Board and Referee have relied upon

the decisions in State v. Eisenberg, and

Ledvina, supra, as supporting imposition of

discipline based solely upon a violation of

the attorney's oath. Not only are both

cases readily distinguishable on their

facts, but neither supports the proposition

for which they are relied upon.

State v. Eisenberg, 48 Wis. 2d 364,

180 N.W.2d 529 (1970) involved abusive

behavior so extreme that it resulted in the

Suicide of the judge at whom the behavior

was aimed. That conduct clearly would have

fallen within the language of a specific

disciplinary rule. In the Eisenberg case,

the language cited is mirrored by language

in the disciplinary code regarding the

conduct of lawyers toward courts. The

court specifically recognized that in its

decision when it noted at page 379:

We find that the above acts of

the defendants constitute

unprofessional conduct tending to

bring the courts ints disrepute

and contempt and that such

conduct is contrary to the duties

of the defendants as licensed

attorneys and in violation of

their oaths as attorneys taken

pursuant to sec. 256.29, Stats.

Eisenberg does not involve the concept of

offensive personality, and the court did

not rely solely upon the isolated language

in the oath and imposing discipline.

Eisenberg is not authority for the entirely

different and far broader position the

Board seeks to advance in the present case.

102

TENE ED meee,

The Eisenberg decision is noteworthy

for the manner in which the court met the

objections of overbreadth advanced by the

respondent. The court rejected the

argument specifically because its earlier

decision In re Cannon, 206 Wis. 2d 374, 240

N.W.2d 441 (1932) had placed an

interpretation in sec. 256.29, Stats.,

which limited its potential scope and

application in a manner clearly consistent

with the mandates of the United States

Constitution.

What the Eisenberg court cited with

approval is precisely what we are seeking

from this court. We do not seek the

invalidation of a statute, but an

interpretation which limits the potential

scope of its application in a manner

consistent with the mandates of the

Constitution.

103

The language of the Cannon decision is

instructive as to what limits are

appropriate. In that case, the court

clearly disapproved of Mr. Cannon's

conduct, which involved criticism of the

judiciary, but did not feel it appropriate

to make it a subject of discipline. In

taking this position, the court stated:

The standards of propriety

generally recognized by the legal

profession do not justify the

reckless criticism of the court's

indulged in by Mr. Cannon. Here,

again, however, we think the

observance of these proprieties

should be brought about rather by

the moral influence of the Bar

itself than by coercion on the

part of the courts. 206 Wis. 2d

at 408.

The restraint exercised by the Cannon

court is in marked contrast to the sweeping

actions which the Board urges upon this

court. The Cannon court declined to exact

punishment for criticism of the judiciary

because in doing. so, they would be

104

"entering upon a field where such a

question will not always be so easy of

decision." The Cannon court saw clearly

the need for restraint in applying the

relatively clear mandate concerning respect

for the judiciary, how much greater that

need in the present case where attempt to

discipline is based upon the entirely

nebulous concept of offensive personality.

The Ledvina case is of no greater

assistance to the Board than Eisenberg.

Ledvina also involves an extended course of

harassing conduct, which the court noted

also violated several specific disciplinary

rules which were set forth in the decision.

The reference to offensive personality in

that case is essentially an afterthought.

The court had already detailed a number of

violations of specific disciplinary rules

and then noted in passing that many of the

105

incidents also violated provisions of the

attorney's oath concerning offensive

personality. It does not appear that the

court relied upon the offensive personality

language in imposing discipline, and it is

certainly clear that the Board did not seek

to impose discipline based solely upon that

language as it does in the case now before

the court. .

In the course of hearings on motions

before the Referee and the Board suggested

that whatever the shortcomings of offensive

personality as a standard, it should be

found to extend to at least to Attorney

Heilprin's conduct. The hazards of

endorsing prosecutions based solely upon

that amorphous term is obvious. Whatever

the view of the present conduct,

ratification of the Board's approach will

inevitably lead to its use in other

106

situations. That will place every attorney

in the State at risk of discipline for

something which is utterly lacking in the

ascertainable standards, referenced to by

the court in State v. Schalow, 131 Wis.2d

1, 388 N.W.2d 176 (1986).

Moreover, Wisconsin had refused to

countenance the notion that ae flawed

standard may be acceptable where applied to

conduct which may be a proper subject for

government regulation by a more narrowly

drawn law. At page 499 of In The Matter Of

The Complaint Against Seraphim, 97 Wis. 2d

485, 294 N.W.2d 485 (1980), the court

specifically rejected that notion. In

doing so, the court stated:

A statute or rule is over broad

when its language given its

normal meaning is so broad that

its sanctions may apply _ to

conduct which the State is not

entitled to regulate. State v.

Tronca, 84 Wis. 2d 68, 89, 267

N.W.2d 216 (1978). An over broad

107

statute or rule is void even

though the conduct to which it is

presently being applied is not

constitutionally protected and

would be a proper subject for

government regulation or

prohibition by a more narrowly

Grawn law. Milwaukee v. Wilson,

96 Wis. 2d 11, 19, 291 N.W.2d 452

(1980).

The cited language invalidates a

disciplinary proceeding based upon the

offensive personality language of the oath.

By any reasonable standard, that language

provides no ascertd@inable standard to

conform to and intrudes upon areas where

the State has no right or need to go.

Ultimately, the disciplinary system

must stand the test of fundamental

fairness. There are ample tools at the

system's disposal to accomplish its ends

within those hounds. The ultimate effect

of a disciplinary proceeding is often to

deprive a person of his livelihood, his

profession and even his reputation. The

108

vast majority of criminal prosecutions do

no more, and many do considerably less.

It is incumbent upon the system as

part of our broader system of justice to

maintain those standards of fundamental

fairness upon which we all rely for our

protection. An erosion of those standards

in proceedings authored by the arbiters of

fairness in our system undermines the very

foundation of that system.

109

STATE OF WISCONSIN IN SUPREME COURT

In the Matter of the Disciplinary

Proceedings Against:

COMPLAINT

Case No.

RICHARD A. HEILPRIN

Attorney at Law

TO: THE HONORABLE JUSTICES OF

THE WISCONSIN SUPREME COURT

The Complaint of the Board of

Attorneys Professional Responsibility of

the State of Wisconsin respectfully

alleges:

| That the Board of Attorneys

Professional Responsibility is a _ body

established by the Wisconsin Supreme Court

and operates under Chapter 21 of the

Wisconsin Supreme Court Rules.

i That the respondent, Richard

Heilprin, is an attorney duly licensed to

practice law in the courts of the State of

110

Wisconsin and, upon information and belief,

resides at 6001 N. Highlands Avenue,

Madison, WI 53705, and currently has

offices located at 315 S. Henry, Madison,

WI 53701.

FIRST CAUSE OF ACTION

3. For the first cause of action, the

Board of Attorneys Professional

Responsibility, upon information and

belief, alleges that the respondent engaged

in offensive personality contrary to the

Attorney's Oath, SCR 40.13° and 40.15 and

20.04(1)° and 20:8.4(g). The respondent in

the course of the representaticn of Beverly

Tate from June 15, 1987, to May 1, 1988,

conducted several interviews with Beverly

Tate at respondent's law offices at 315 S.

240.15 (9/1/88).

320:8.4(g) (1988).

112

Henry, Madison, WI 53701. Respondent was

representing Beverly Tate with regard to a

September, 1986, automobile accident in

which Ms. Tate was injured. In his first

telephone call with her, respondent asked

her how her sex life was. His first

interview with Ms. Tate was on June 17,

1987. Respondent asked her how her sex

life was. He also asked her what positions

she used in sexual relations and how many

climaxes she attained. He stated that he

bet her nipples got really hard during sex.

4. During subsequent interviews with

Ms. Tate between June, 1987, and May 1,

1988, respondent asked the same or similar

questions. In addition the respondent

asked Ms. Tate why she was hanging around

with her husband Stan. He stated that she

was an attractive lady and could do better.

112

Se ee

5. During other interviews with the

respondent, he repeated many of the above

questions and in addition asked Ms. Tate if

she was going to have an affair, who would

she have an affair with.

6. That all of the foregoing conduct

of the respondent between June, 1987, and

May 1, 1988, with regard to Beverly Tate

constitutes a violation of the Attorney's

Oath in that it is offensive personality

contrary to SCR 40.13°, 40.15, 20.04(1)° and

20:8.4(g).

SECOND CAUSE OF ACTION

7 Petitioner realleges and

incorporates paragraphs one through six

above and adds that between March 15, 1988

and April 4, 1988, at his law offices at

315 S. Henry, Madison, Wisconsin 53701,

“40.15 (9/1/88).

°20:8.4(g) (1988).

113

respondent did engage in offensive

personality contrary to the Attorney's

Oath, SCR 40.13° and 20.8.4(g)’.

8. Ruth McSherry, an adult female who

resides in Dane County, Wisconsin, was

referred to respondent by another attorney

for handling her personal in‘ury matter.

When Ms. McSherry met with Attorney

Heilprin at his law offices in March, 1988,

he questioned her about both a Worker's

Compensation lawsuit and the Personal

Injury matter. Respondent asked her

whether her hair down below was the same

color as the hair on her head. Respondent

commented that he bet her nipples were big,

brown and soft. When he asked her if she

was married and asked her what she found.

attractive in her two previous lawyers. He

40.15 (9/1/88).

"40.16 (9/1/88).

114

then asked her if she found him

(respondent) attractive. She responded

that she did not find him attractive, that

he waS a crude person.

9. At her second appointment with

respondent, which occurred after March 15,

1988, and before April 4, 1988, respondent

asked her whether she was dating and

commented that he bet she was the kind of

woman who would let a man play with her

clit. Respondent commented that he bet she

liked to give head. Respondent further

commented that he bet she liked to get on

a man and ride him real hard. Respondent

further commented that he believed Ms.

McSherry to be so vulnerable and gullible

that she would invite a man home for a day

and have a good time and then forget about

it.

4115

10. All of the foregoing conduct of

the respondent with Ms. McSherry

constitutes offensive personality in

violation of the Attorney's Oath and

contrary to SCR 40.13 and 20:8.4(g).

THIRD CAUSE OF ACTION

11. Petitioner realleges and

incorporates paragraphs one through ten

above and adds that between October 27,

1986, and November 1, 1986, respondent

accepted employment when his professional

judgment on behalf of his client reasonably

may have been affected by his own personal

interest, contrary to SCR 20.24(1)° and

respondent did acquire a proprietary

interest in the cause of action or subject

matter of litigation he was conducting for

a client contrary to SCR 20.26(1)”.

®20:1.7(b) (1988).

920:1.8(4) (1988).

116

12. Respondent and Attorney David

Easton represented David Mann, a plaintiff

in a lawsuit against International

Harvester Company (now known as Navistar).

The Law Firm oof Quarles & Brady,

represented by Attorney John A. Rothstein,

was representing Navistar. On Monday,

October 27, 1986, a videotape deposition of

Henry Dalloz, an employee of Navistar, took

place in Chicago. At the conclusion of the

seven and one-half hour deposition,

respondent took possession of a file that

Dalloz had brought with him. The file was

Dalloz' personal file. Respondent stated

that he intended to take the file with hin.

Attorney Rothstein indicated that while he

was willing to make photocopies of all the

documents in the file for respondent,

respondent was not entitled to take the

original file with hin. Respondent

117

physically grabbed Mr. Dalloz' briefcase

with the file and ripped the file in the

process. The videotape transcript reveals

the following exchange between respondent

and Attorney Rothstein and the Court

Reporter:

Heilprin: As far as I'm concerned in

this thing--you have no

right to be taking court

exhibits.

Reporter: We're on the record now.

We're on the record.

Rothstein:For the record, I am taking

back the Navistar file. I

have offered to Mr. Heilprin

to make copies of whatever

he wants. The actual pieces

of paper, however, are

Navistar's and I will not

release those to 2. a

Heilprin. Now, I am taking-

-would you please film

this?

Heilprin: I'll ttell you something.

This stuff was to be

produced for us. I can't

read it if you have it in

your possession. I can't

read it, Counsel, unless I

have it in my possession.

118

Rothstein:I am physically being

threatened.

Heilprin: You're not being threatened.

You're just a little boy.

Rothstein:I am physically being

threatened by Mr. Heilprin.

Heilprin: You're not being threatened.

Rothstein:He has just taken our file

by violence and I'm leaving.

Heilprin: Oh, baloney. You took it

initially by violence.

Rothstein:I'm leaving

Heilprin: So leave.

13. Respondent left with Dalloz' file

but subsequently called complainant at

10:00 p.m. and apologized for his behavior.

He promised to return the file the

following day and did so.

14. On Friday, October 31, 1986, a

Motion was held before Judge Kent Houck at

the Richland Center County Courthouse in

Richland Center, Wisconsin. After the

hearing, the parties engaged in settlement

negotiations. A disagreement arose as to

whether Attorney Rothstein's firm would

report Mr. Heilprin's conduct at the

October 27, 1986, deposition to the Board

of Attorneys Professional Responsibility.

Respondent offered to settle Mr. Mann's

claim for $60,000.00, provided that

respondent's conduct would not be reported

to the Board. Attorney Rothstein indicated

that his client would settle for $20,000.00

and that respondent's suggestion about

including language regarding the potential

misconduct complaint was improper. No

settlement was reached and Attorney

Rothstein returned to Milwaukee.

is. Respondent stayed in Richland

Center along with Attorney Easton and their

client, David Mann, to discuss further

settlement possibilities. During those

discussions, it was agreed that because

120

respondent had a conflict of interest in

advising Mr. Mann about the settlement,

Easton would act as Mr. Mann's sole advisor

regarding the settlement. Respondent left

so that Mr. Easton and Mr. Mann could have

further discussions.

16. Attorney Easton and Attorney

Rothstein had further settlement

discussions by phone that same day, wherein

Attorney Rothstein raised his offer to

$25,000.00. The plaintiff Mann told

Attorney Easton he was willing to accept

the $25,000.00 offer but he wanted

protection for respondent from a complaint

to the Board of Attorneys Professional

Responsibility. At this point, the only

issue impeding settlement therefor was the

professional misconduct charges. Attorney

Easton explained the problem to Judge Houck

and Judge Houck suggested that in lieu of

aaa

any agreement to not file a grievance

against Attorney Heilprin, a two week

"cooling off" period be imposed, wherein no

complaints would be filed, followed by

another two week period wherein Mr. Mann's

case would be held open and Motions

regarding any charges of misconduct would

be entertained by the Court. Attorney

Easton proposed this alternative to

plaintiff Mann and Mann agreed that he

would be willing to settle on these terms.

L?. Attorney Easton then phoned

Attorney Rothstein in the presence of Judge

Houck and both sides agreed to the

settlement. Judge Houck summoned a Court

reporter so that the terms of the

settlement could be recorded.

18. Respondent then returned and was

advised of the settlement terms.

Respondent openly disagreed with the

122

settlement terms arguing that he had an

enforceable attorney's lien and that he

refused to be "left hanging out to dry" by

the terms of the settlement. Judge Houck

responded that respondent should not be

interfering with the settlement

negotiations. When Attorney Rothstein

reiterated that the settlement would have

no bearing on any complaint with The Board

of Attorneys Professional Responsibility,

respondent insisted "I can't do that.

Absolutely improper." When Attorney Easton

and the Court agreed that the Court itself

was willing to hear the misconduct

allegations but pointed out that that would

not prevent Attorney Rothstein from filing

a separate complaint with the Board,

respondent stated, "This is wrong Dave, I

am sorry."

19. Respondent and Attorney Easton

had a private conference outside of the

Judge's chambers and when they returned,

Judge Houck asked respondent if he was

going to upset the settlement because it

did not give him proper. protection.

Respondent replied:

"I think the client ought to be

asked the question: Are you

willing to settle and have your

attorney then over at the State

Bar because it is obvious that

where you didn't set a time limit

or a limitation in this thing,

that's exactly what is going to -

happen, and I think that's the

fair question to ask_ Mr. Mann and

whatever he says, I will abide

- by."

20. Judge Houck then questioned

plaintiff Mann on the record. Plaintiff

Mann indicated that he was not willing to

settle without protection for respondent

and understood therefore that he did not

have a settlement and would have to go to

trial. When Attorney Easton and respondent

124

ES — —

were advised of Mann's response to Judge

Houck, Attorney Easton asked to withdraw

from Mann's representation. They then went

off the record without settlement being

concluded.

21. Judge Houck refused to allow

Attorney Easton to withdraw. Attorney

Easton said he subsequently met with

plaintiff Mann and respondent for another

two hours. Attorney Easton indicates that

while respondent was still upset, he did

advise Mann that there was nothing that

could be done to prevent Attorney Rothstein

from filing charges of misconduct and that

if a $25,000.00 settlement was acceptable,

Mann should agree to settle the case.

22. A settlement agreement was

concluded the following day with no

provision that prevented Attorney Rothstein

from filing a grievance against respondent.

125

The court did adopt Judge Houck's

Suggestion that no action be taken on the

complaints of misconduct for two weeks and

that, if anyone did have a complaint

regarding misconduct thereafter, the matter

would be entertained by the Court within

the two weeks following the cooling off

period. Judge Houck indicated that he

would not dismiss the case until the four

week period had passed.

aes On November 5, 1986, respondent

sent a letter of apology to Henry Dalloz

for his conduct at the October 27, 1986,

deposition.

24. On December 5, 1986, respondent

filed a Motion for Declaratory Judgment

with the trial court asking the Court to

enter a Declaratory Judgment finding that

respondent's conduct was "not violative of

the code of professional ethics and does

126

not merit a formal complaint to the Board

of Attorneys Professional Responsibility."

25. On February 18, 1987, Judge Houck

issued. a Memorandum Decision denying

respondent's Motion for Declaratory

Judgment on the grounds that respondent

failed to start a separate action, failed

to serve pleadings and failed to join the

necessary party, the Board of Attorneys

Professional Responsibility.

26. On December 22, 1986, the Board

of Attorneys professional Reguenihiesty

received a complaint from Attorney

Rothstein.

27. All of the foregoing Third Cause

of Act{on constitute a violation of SCR

20.24(1)'° and 20.26".

020:1.7(b) (1988).

"20:1.8(4) (1988).

127

fi... a

WHEREFORE, the Board of Attorneys

Professional Responsibility prays that the

respondent, Richard Heilprin, be ordered to

make answer to the Complaint, and if upon

the trial of the issues herein, he be found

guilty of matters herein charged, that he

be properly disciplined therefore by

Judgment of the Court and ordered to pay

the costs of this action and such other

orders as are just and reasonable under the

circumstances.

Dated at South Milwaukee, Wisconsin,

this day of February,

1990.

BOARD OF ATTORNEYS PROFESSIONAL

RESPONSIBILITY

By:

Kitty K. Brennan, Counsel

P. O. ADDRESS:

1334 Milwaukee Avenue

P. O. Box 308

South Milwaukee, Wl 53172

(414) 764-4410

STATE

¥.

HEILPRIN

No. State 94. August Term, 1972

SUPREME COURT OF WISCONSIN

Argued May 2, 1973.--Decided June 18, 1973.

Reported in 59 Wis. 2d 312,

and

207 N.W.2d 878

ORIGINAL ACTION upon the complaint of

the Board of State Bar Commissioners,

seeking the discipline of defendant,

Richard A. Heilprin, an attorney.

Adjudged, defendant's conduct merits

discipline. Discipline imposed.

The complaint of the Board of State

Bar Commissioners alleged that defendant

was guilty of unprofessional conduct. The

Hon. JOHN A. FIORENZA was appointed referee

129

to hear the testimony and make findings and

recommendations in conformity with the

provisions of sec. 256.28, Stats. The

findings and recommendations of the referee

have been made and filed.

The referee found that the facts

alleged in the complaint were admitted or

proved with several exceptions and

recommended that:

as Richard A. Heilprin's license to

practice law be suspended for an indefinite

period of time pending his recovery from

his medical disability;

2 Defendant be allowed to petition

this court for reinstatement of his license

at such time as he believes that the

medical disability has been removed;

3 Upon petition for reinstatement,

this court "should appoint an independent

130

psychiatrist to evaluate the defendant's

condition."

Additional facts will be referred to

in the opinion.

For the plaintiff there was a brief

and oral argument by James A. Drill of New

Richmond.

For the defendant there was a brief by

Curtis M. Kirkhuff and Johnson, Bieber &

Kirkhuff, all of Madison, and oral argument

by Curtis M. Kirkhuff.

PER CURIAM. Richard Heilprin is

thirty-nine years of age, a resident of

Madison, Wisconsin, and has practiced law

in this state for thirteen years. He is

married and has two children.

The complaint in this' proceeding

alleges as follows:

Le On November 6, 1970, he

"conducted himself ina rude, discourteous,

131

offensive, and unprofessional manner in

conversations with Julia Hunt of the office

of the Dane County Clerk of Courts," at

which time he called Mrs. Hunt "stupid,

irresponsible and derelict in her duty" and

threatened to have her removed from her job

and thrown in jail for improperly

disbursing funds;

ye On November 13, 1970, and on

numerous prior occasions, he similarly

conducted himself with dulia Hunt and

several other members of the office staff

of the Dane County Clerk of Courts,

creating a disturbance at which he was loud

and abusive, characterized all the clerks

as incompetent and accused them of

dishonesty, stupidity, dereliction of duty,

and favoritism toward certain attorneys;

3. From August 3 through August 11,

1970, he made abusive telephone calls to

132

Mr. and Mrs. Ivan Kalin in an attempt to

coerce settlement of a claim against their

son, at which time he threatened an

expensive lawsuit he knew to be without

merit, threatened to kick Mr. Kalin's "ass

from wall to wall" and told Mr. Kalin that

he (Heilprin) was a "killer" as Kalin would

soon find out;

4, On September 23 and 25, 1969, he

made abusive telephone calls to the wives

of the principals of the Madison business

firm of Hoff & Lem, Inc., and to that

firi's secretary to whom he said such

things as "If you don't tell me your name,

I'll call the police and they'll come up

and get your name," "You go in there and

kick that goddamn door down," "Get that son

of a bitch on the telephone," and "You get

that jackass," and obtained a $550 check

from Mr. Hoff upon the false assertion that

Mr. Lem wanted to settle a claim.

er During January or February of

1970, he mace sexual advances to N

S , a Client, at her initial visit,

at which time he talked obscenely,

indecently exposed himself, touched

N S _in her chest and pelvic

areas, and proposed sexual intercourse; he

repeated all but the indecent exposure on

the client's second visit;

6. During August or September of

1970, he made sexual advances to D

M , a Client, at her initial visit,

at which time he talked obscenely and made

indecent gestures; he repeated this conduct

at her second visit and also indecently

exposed himself; and in subsequent

telephone conversations he talked obscenely

and made indecent sexual proposals;

134

7% On October 6, 1970, he commenced

an action on behalf of a client against

Erdman & Associates, Inc., in the course of

which he made a settlement demand of more

than twice the amount in dispute;

threatened to "queer federal financing by

filing a lien" on the project involved in

the action; threatened to collect 10% from

the IRS for reporting that Erdman's pension

trust was nonexempt; accused Erdman of

"inside dealing with Madison Bank & Trust;"

accused Erdman of "committing a fraud on

the federal government;" threatened to "put

Erdman out of business," stating that he

knew where to draw the line with respect to

abuse of process, and threatened that if

Erdman representatives did not agree to a

45 minute delay in taking depositions, his

"first stop would be at the IRS for ten

percent."

eS TCT: CR etm

Either by answer or stipulation,

Heilprin admitted all allegations in the

complaint except that he knew the

threatened lawsuit against Mr. Kalin to be

without merit, he obtained a $550 check

from Mr. Hoff upon a false representation,

and that he made sexual advances or exposed

himself to N S and

D M on more than one

occasion. Heilprin then set up the

affirmative defense that he was inflicted

with a personality disorder for which he

sought medical treatment and which was a

major contributing factor in causing his

problems. At a hearing on August 9, 1972,

over objection by the defense, the state

produced witnesses to testify as to the

allegations of the complaint which were

already admitted.

136

Mr. Ivan Kalin testified that in

August of 1970, he came home and found his

wife in tears. She told him that an

attorney called with regard to their

twenty-three-year-old son. The next day,

Heilprin called Kalin at work, interrupting

a business conference and stated he was

representing a client who had a claim

against Kalin's son which arose out of an

automobile accident. The reason he called

was that he understood Kalin had control

over some money that belonged to Kalin's

son. Heilprin stated he would settle for

$3,000 if Kalin came over and made a

settlement promptly. When Mr. Kalin stated

he had nothing to do with his’ son's

business, Heilprin told him he would settle

for $3,000 or make Kalin sorry about it.

Heilprin then added, "I just want you to

know I'ma killer, and I can make it pretty

aaf

tough for you." He further stated that if

Kalin were in his office he would "kick his

ass from wall to wall" and show what a

Killer he was.

Mrs. Julia Hunt, the Deputy Clerk of

Courts for Dane County, testified that

Heilprin often called the clerks stupid and

incompetent if they could not take care of

his business at the moment, and called her

a "goddamn son of a bitch." He acted this

way in more than 10 telephone conversations

she had with him. On one particular

occasion, Heilprin represented a certain

client in two successive divorce actions,

but failed to file a temporary order which

would advise the clerks of the second

action. By mistake, the clerks sent money

paid in by Heilprin's client to the

client's first wife instead of to the

second for whom the payments were intended.

138

When Heilprin discovered this, he kept Mrs.

Hunt on the phone for over an hour, calling

her stupid, incompetent and derelict in her

duties. He told her he would call someone

in the County Board's Personnel Department

to see that she was removed from her job

and would have the sheriff arrest her and

put her in jail until she could produce the

money that was mistakenly sent out. On

another occasion, on November 13, 1970,

Heilprin came into the cierk's office with

a client at which time he called Mrs. Hunt

incompetent and used profane language

because she refused to send his client

money until she received a termination

notice from the department of social

services. He ended the conversation by

telling her it was time she kept her

fingers out of the till and saw that people

who were entitled to money were getting it.

Rose Richgels and Marion Mindrun,

employees in the clerk of sourt’s office,

testified they received similar abuse from

Heilprin. Marion Mindrum testified that on

his November 13, 1970, outburst in the

clerk's office, he pointed to her, stating,

"And you over there are incompetent,

derelict and cheat on the blind draw for

the assignment of judges." In the year

prior to the hearing, the clerks had no

trouble with Heilprin. On April 7, 1971,

he sent a letter of apology to Mrs. Hunt

and all other office personnel in the

clerk's office.

Also testifying at this hearing were

Mrs. Helen Lem and Mrs. Patricia Hoff, the

wives of the principals of Hoff & Lem, Inc.

Mrs. Lem testified that Heilprin called her

on the telephone on September 24 or 25,

1969, looking for her husband. When she

140

stated she did not know where he was, he

said she did know and he would keep calling

until she told him. Heilprin threatened to

send out the sheriff if she did not tell

him where her husband could be found. She

then hung up; he called back, but she hung

up as soon as she discovered who it was.

After these calls, she was very upset and

frightened. Mrs. Hoff testified that

Heilprin called her on September 23, 1969.

He talked about some check upon which Lem

stopped payment, adding "And you know what

kind of a person Charlie (Lem) 28.*

Heilprin mentioned calling the district

attorney and the bad publicity which would

result from the stopped payment of the

check. She then hung up; he called again

and she again hung up. Two days later, on

September 25, 1969, he called again and

told her there was a woman crying in his

141

office because she had no food. Mrs. Hoff

hung up. Heilprin called again and she

again hung up. The third time she did not

answer the phone but let it ring about 100

times.

On August 23, 1972, Heilprin presented

his affirmative defense through expert

testimony of Dr. Joseph G. Brown, a

psychiatrist. Heilprin voluntarily

absented himself from the hearing at this

wiéited because it was deemed harmful for him

to hear the medical testimony. Dr. Brown

first saw Heilprin on December 4, 1969, at

which time Heilprin's chief difficulty was

in the area of marital problems. Heilprin

had a history of sexual problems within his

marriage and, in 1964 or 1965, sought

psychiatric treatment which was terminated

because of a violent disagreement with the

psychiatrist. After the first interview,

142

Dr. Brown diagnosed Heilprin's problem as

being a personality disorder--that of an

obsessive, compulsive personality. A

personality disorder is not an illness,

such aS a psychosis or neurosis, but a

disorder of behavior. It is a recognized

medical disability for which there is a

treatment. It does not come into being, as

such, until the individual's personality

gets him in trouble, at which time it is

labelled a "disorder."

Dr. Brown's first course of treatment

waS marital therapy with Mr. and Mrs.

Heilprin and two. psychiatrists. This

continued until the end of December, 1970,

at which time the other psychiatrist moved

out of the city. Dr. Brown attempted to

continue to do so and eventually terminated

this method of treatment and saw Heilprin

alone.

143

Heilprin made very little progress

from December of 1969 until the autumn of

1970. During this time, Heilprin had been

very abusive toward the doctor's staff. In

the autumn of 1970, Dr. Brown told Heilprin

this abusive treatment had to stop. At

their next session, when the subject of his

abusive behavior was brought up, Heilprin

broke out in a violent burst of temper,

accusing Dr. Brown of being anti-Semitic.

Dr. Brown responded with astonishment and

assured Heilprin he harbored no_- such

feelings. From that point on, Heilprin

made steady progress. It would take a

great deal more stress now to break him

down than it would have one year ago. In

Dr. Brown's opinion, this improvement is

partie ly due to the threat of disciplinary

proceedings by the State Bar.

144

On the other hand, Heilprin still has

problems in the area of emotional

dependence upon his wife together with the

stress this causes him, and his marital

difficulties still exist. He suffers from

the personality disorder which will require

an indefinite period of further treatment.

He is still liable to respond in a very

aggressive and hostile manner should he

feel himself "being moved in upon." While

the likelihood of sexual misconduct is not

eliminated, it is greatly reduced from

1970. Dr. Brown anticipates further flare-

ups, but believes their probability has

greatly declined.

After Dr. Brown was excused, the state

attempted to introduce evidence which would

show that Heilprin had not in fact improved

as the psychiatrist believed, and thus the

expert opinion should be discounted.

145

Because the state refused to recall Dr.

Brown to question him on whether his

opinion would change as a result of the

further evidence of outbursts, however, the

referee refused to allow the rebuttal

testimony into evidence. The state then

made an offer of proof that subsequent to

March of 1972, Heilprin had several similar

outbursts of loud and abusive conduct

toward a former client and former legal

associate.

The state now moves this court for:

i» A review of the referee's

rejection of the rebuttal evidence and

consideration of such evidence in further

Support of the findings;

re A confirmation of the referee's

findings of fact;

3. An order that the "medical

disability" is not of such a nature as to

constitute a defense to the imposition of

discipline and an order imposing

discipline; and

4. If the disability is deemed a

defense, for an order indefinitely

suspending Heilprin's license to practice

law in accordance with the _ referee's

recommendations.

Heilprin moves to set aside the

referee's finding that he still suffers

from the medical disability and _ the

referee's recommendations on the ground

that they are "against the great weight of

the credible evidence in the record."

The state contends it was error to

exclude the rebuttal evidence of more

recent outbursts on the part of Heilprin

because such evidence impeached Dr. Brown's

testimony that the defendant's condition

had improved, or if the condition did

improve, it showed that the personality

disorder had no relationship to the

misconduct.

We think that the evidence offered in

rebuttal was lacking in probative value

and, hence, properly excluded. It failed

to accomplish its purpose of showing that

Dr. Brown's opinion as to Heilprin's

progress was unworthy of belief; the mere

incidence of further outbursts would not be

inconsistent with the doctor's testimony;

the doctor anticipated future flare-ups.

There was no claim that Heilprin was cured,

and the doctor's opinion was not based on

the absence of recurring outbursts.

Both parties address themselves to the

question of whether the evidence in support

of the referee's findings was against the

great weight and clear preponderance of the

evidence. However, in attorney

148

disciplinary proceedings, that test does

not apply. The court must look to the

record de novo to determine whether the

facts therein warrant discipline or

Suspension. State v. Weber (1972), 55 Wis.

2a 548, 200 N.W. 2d 577. It is the state's

burden to bring forth such facts by clear

and satisfactory evidence, the middle

burden of proof. State v. Stumpf (1972),

53 Wis. 2d 690, 695, 193 N.W. 2d 842. In

this case, there is no real issue as to

whether Heilprin committed acts of

professional misconduct. He admitted the

acts as outlined in the statement of facts,

and thus, the state met its burden of

proof.

Dr. Brown testified that the

personality disorder was a major factor in

and a substantial cause of Heilprin's

misconduct. The state did not introduce

149

any evidence which would destroy the

credibility of this testimony. No evidence

was offered which would disprove a causal

relationship between the disorder and the

acts. Thus, Dr. Brown's testimony is the

only evidence on the issue of whether or

not the personality disorder was’ the

proximate cause of Heilprin's misconduct

and must be accepted.

A question arises as to whether a

personality disorder is such a disability

as would absolve the defendant of

responsibility for his actions.

This court has never held a

personality disorder to be a cause of

medical suspension. State v. Cadden

(1972), 56 Wis. 2d 320, 201 N.W. 2d 773,

involved a mental illness--schizophrenia.

A personality disorder, as Dr. Brown

testified, is not an illness, but a

disorder of behavior. It is in effect a

composite of personality traits which

causes an individual difficulties in

interactions with others. As Dr. Brown

admitted, many of us have characteristics

comprising the obsessive-compulsive

personality. It is only when those

characteristics get an individual into

trouble that they are labelled a disorder.

If this court would recognize a personality

disorder as a defense to a disciplinary

proceeding, every attorney who conducted

himself in an obnoxious and unprofessional

manner could point to his’ personality

traits which would, by that time, be

labelled a disorder because they led the

individual into trouble.

Heilprin's actions were not completely

out of his control in the sense that he

could not understand the difference between

sve

ee oo

right and wrong or appreciate the

impropriety of his conduct.

We conclude that Heilprin's

personality disorder does not excuse his

misconduct. Conduct of the type engaged in

my Heilprin cannot be condoned, whatever

the cause. The public must not be exposed

to this type of action from members of the

legal profession.

We are satisfied there is clear,

satisfactory and convincing evidence that

Richard A. Heilprin is still liable to

respond in a very aggressive and hostile

manner in stress situations; further flare-

ups are to be expected, and while the

likelihood of further sexual misconduct is

reduced, it is not eliminated. The public

should not be exposed to the threat of

future outbursts. Therefore, is it ordered

and adjudged that the license of Richard A.

152

Heilprin to practice law be and is hereby

suspended until such time as by order of

this court he is found to have recovered

from his personality disorder; defendant

may petition this court for reinstatement

of his license to practice law at such time

as he is convinced his personality disorder

has been removed; if defendant does so

petition this court for reinstatement, this

court will appoint an independent

psychiatrist to evaluate the defendant's

condition.

It is further ordered that the State

Bar of Wisconsin notify the courts of

record of these orders by sending each

copies thereof.

It is further ordered that Richard A.

Heilprin notify his clients now represented

by him in all matters involving the

practice of law or all matters pending in

any court of this state that his license to

practice law in this’ state is now

Suspended.

WI SCR 20:8.4 Misconduct

It is professional misconduct for a

lawyer to:

(a) violate or attempt to violate the

Rules of Professional Conduct, knowingly

assist or induce another to do so, or do so

through the acts of another;

(b) commit ae criminal act that

reflects adversely on the lawyer's honesty,

trustworthiness or fitness as a lawyer in

other respects;

dishonesty, fraud, deceit or

misrepresentation;

(d) state or imply an ability to

influence improperly a government agency or

official;

(e) Knowingly assist a judge or

judicial officer in conduct that is a

155

violation of applicable rules of judicial

conduct or other law; or

(f) violate a statute, supreme court

rule, supreme court order or supreme court

decision regulating the conduct of lawyers;

(g) violate the attorney's oath.

a ee

WI SCR 40.15 Attorney's oath. The_oath orn

affirmation to be taken to qualify for

admission to the practice of law shal: he

in substantially the following form:

I will support the constitution of the

United States and the constitution of the

state of Wisconsin;

I will maintain the respect due to

courts of justice and judicial officers;

I will not counsel or maintain any

suit or proceeding which shall appear to me

to be unjust, or any defense, except such

as I believe to be honestly debatable under

the law of the land;

I will employ, for the purpose of

maintaining the causes confided to me, such

means only as are consistent with truth and

honor, and will never seek to mislead the

judge or jury by any artifice or false

statement of fact or law;

ane

= dlmlmDmDmDmlmlmlmlmlmlmlmmmwwOO~—~—OCOCOCO

I will maintain the confidence and

- preserve inviolate the secrets of my client

and will accept no compensation in

connection with my client's business except

from my client or with my client's

knowledge and approval;

I will abstain from all offensive

personality and advance no fact prejudicial

to the honor or reputation of a party or

witness, unless required by the justice of

the cause with which I am charged;

I will never reject, from any

consideration personal to myself, the cause

of the defenseless or oppressed, or delay

any person's cause for lucre or malice. So

help me God.

Sec. 256.28, WIs. STATS; Attorneys;

admission to practice (1972).

No person shall be admitted or licensed to

practice law in this state, including

appearing before any court, except in the

following manner:

(1) ADMISSION ON LAW DIPLOMA, LIST OF

LAW SCHOOLS. (a) Every person 21 years of

age or over and of good moral character who

is a citizen of the United States, a

resident of this state and a graduate of a

law school in this state which law school

at the time of his graduation was approved

by the American bar association, as shown

by the record of the clerk of the supreme

court, and who has met the requirements of

sub. (1) (b) shall be admitted to practice

law in this state by the supreme court and,

when such court is not in session, by one

of the justices thereof, by an order signed

i939

by such justice and filed with the clerk of

said court.

(b) To be admitted on the diploma

privilege, every applicant must present to

the clerk of the supreme court his diploma

and a certificate of the law school at

which he completed his formal law studies,

showing the courses completed and the

semester credits earned and stating that

according to the official academic records

of such school the applicant has

satisfactorily completed at least the

minimum of legal studies required for the

first degree in law and the total semester

hours were not less than 84; and such

studies included not less than 60 semester

hours of accredited study, satisfactorily

completed in regular courses having as

their primary and direct subject matters

the study of rules and principles of

aa mill

substantive and procedural law as they may

arise in the courts and administrative

agencies of the United States and this

state in the areas generally known as:

administrative law, appellate practice and

procedure, commercial transactions,

conflict of laws, constitutional law,

contracts, corporations, creditors' rights,

criminal law and procedure, damages,

domestic relations, equity, evidence,

future interests, insurance, jurisdiction

of courts, labor law, legislation, ethics

and legal responsibility of the profession,

partnership, personal property, pleading

and practice, public utilities, quasi-

contracts, real property, taxation, torts,

trade regulation, trusts, and wills and

estates. There shall be included in such

minimum not less than 30 semester hours

covering the following subject matters:

161

constitutional law, contracts, criminal law

and procedure, evidence, jurisdiction of

courts, ethics and legal responsibilities

of the legal profession, pleading and

practice, real property, torts, wills and

estates. These requirements may . be

satisfied by combinations of the curricular

courses, and the dean of each law school in

Wisconsin shall file with the clerk of the

supreme court upon its request a certified

statement setting forth the courses taught

in his law school which are accredited for

a first degree in law and the percentage of

the time devoted in each course to the

subject matter of the areas of law required

by this rule for eligibility to admission

on the diploma privilege. In addition to

these requirements a law school may require

other courses or practical training, for

which credit toward a degree may or may not

162

be given, aS a prerequisite to its

certification of eligibility for admission

on the diploma privilege.

shall compile a record of all law schools,

which are approved by the American bar

association, with the date of such approval

and those which are not approved; and such

record so compiled shall constitute an

official record of the supreme court, and

proof of the fact that the law schools

therein stated as approved by the American

bar association were so approved at the

times therein stated.

(2) ADMISSION ON CERTIFICATE OF BAR

COMMISSIONERS. Every person 21 years of

age or over and of good moral character who

is a citizen of the United States and a

resident of this state and a graduate of

any law school which at the time of his

163

graduation was approved by the American bar

association shown by the record of the

clerk of the supreme court, shall, upon the

production of the certificate of the board

of state bar commissioners, be admitted to

practice law in this state by the supreme

court, and when such court is not in

session, by one of the justices, by an

order signed by such justice and filed with

the clerk of said court. A certificate

shall be given by the board of state bar

commissioners to every person who

successfully passes an examination given by

the board of state bar commissioners

covering all or part of the subject matter

in the areas of law listed in sub. (1) (b).

(3) ADMISSION ON PROOF OF PRACTICE

ELSEWHERE. Every person 21 years of age or

over and of good moral character who is a

citizen of the United States and a resident

164

of this state and who shall have been

admitted to practice law in any other state

or states or territory, or the District of

Columbia, may be admitted to practice law

in this state by the supreme court upon

motion, or, when the court is not in

session, by one of the justices thereof,

after filing with the clerk of the supreme

court (1) his written application therefor,

(2) a certificate of his admission to

practice law by a court of last resort in

such other state or territory or the

District of Columbia and (3) satisfactory

proof that he is a citizen of the United

States and a resident of this state, is of

good moral character, and has been engaged

in actual practice in such other state or

states or territory or the District of

Columbia or in the courts of the United

States for 5 years within the last 8 years

165

prior to filing his application, exclusive

in each case of time spent in the armed

forces. The certificate of the judge or

any court of record in such other state or

territory or the District of Columbia or

court of the United States, before whom.

such applicant has practiced, under the

seal of such court, may be deemed

sufficient proof of such practice in such

state or territory or the District of

Columbia or court of the United States.

(4) SERVICE COUNTED AS PRACTICE OF

LAW. Service as judge of a court of record

of any state or territory or the District

of Columbia or of the United States,

service in any department of the United

States government including service in the

armed forces determined by the supreme

court to be actual legal service, and

teaching in any law school which is

166

approved by the American bar association,

may be deemed to be actual practice of law

for the purpose of sub. (3), and such law

teaching or such legal service performed in

this state as well as in such other state

or states or territory or District of

Columbia will be counted under the 5 and 8

years’ tests provided in sub. (3).

167

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.