# Appendix — Heilprin v. Wisconsin Board of Attorney's Professional Responsibility > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1180%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 506 U.S. 972 ## 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. 32 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 j 33 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, 34 i 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). 35 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 36 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 37 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 38 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 40 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 41 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 42 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 43 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 44 whose license to practice law in Wisconsin has been revoked. ABRAHAMSON, J., did not participate. 45 hI 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 47 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 49 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 50 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 51 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 52 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 53 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 8 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 58 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 29 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 60 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 61 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 62 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 63 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 64 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? 65 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 66 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 67 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 68 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 69 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 70 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; 71 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 72 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 ve — .- °° °° °° ° ° °°; : 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 74 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 75 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 76 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 77 — 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 78 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 79 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. 80 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 81 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 82 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 83 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 84 a 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 85 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, 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; (c) engage in conduct involving 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; or (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. (c) The clerk of the supreme court 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1180%3A2. Public record. Not legal advice.