January 2007
Featured Disciplinary Case
Topic
A chronic history of disciplinary problems does not necessarily preclude reinstatement if a lawyer can establish current moral character and fitness.
Summary
In the Matter of Disciplinary Proceedings Against Alan D. Eisenberg, 2007 WI 7 (Wisconsin, January 19, 2007). Eisenberg was admitted to practice in 1966. Four years later, he was suspended for one year after recklessly harassing a judge. Specifically, he publicly charged a Milwaukee county judge named Krueger with criminal activity and predicted that the judge would resign for "personal reasons" within a short time rather than face prosecution. He also arranged for the placement of newspaper advertisements soliciting complaints against the judge and he hired a private investigator to investigate the jurist at issue. The Wisconsin Supreme Court held that Eisenberg's conduct, "was of such aggravated nature as to cause Judge Krueger great mental suffering and anguish, which culminated in his death by his own hand" State v. Eisenberg, 48 Wis. 2d 364, 180 N.W.2d 529 (1970). A second suspension, this time for two years, was imposed against him in 1988. During a murder case in which a wife was charged with murdering her spouse, Eisenberg made statements to the press attacking the husband as a vicious, cruel wife abuser, a "hell raiser", and a child sexual abuser. In a separate matter, he fraudulently arranged for a civil suit to be filed against a client in order to delay an extradition. He then falsely denied participating in this scheme. Other charges involved his acquiring publication rights to a client's story, his use of vile and abusive language to a prosecutor and his making knowingly false accusation of perjury about opposing counsel. In re Disciplinary Proceeding Against Eisenberg, 144 Wis. 2d 284, 423 N.W.2d 867 (1988). In 1996, he was publicly reprimanded for not closing out his client trust account during the term of his second suspension. Finally, in 2004, he was suspended for one year and until further order of the Court for engaging in numerous wrongs. First, a divorce client paid a $5,000 retainer to his firm. An associate assigned to handle the case left, taking the client with him. A dispute then arose over the unearned portion of the retainer. Eisenberg fabricated "bogus billings" which he incorporated into an affidavit that he filed with a court. Second, he filed an affidavit in support of a pro hac vice motion in a California case wherein he falsely stated he had never been previously suspended. Third, in an administrative hearing, he was "rude, abusive, controlling and disrespectful", "essentially high jacked the hearing", and acted "much like a spoiled child." Fourth, he engaged in a conflict of interest by getting a client to sign a listing agreement with his real estate company without complying with conflict of interest guidelines. Finally, he was rude and obnoxious in his dealings with a police dispatcher. The referee who heard the disciplinary case recommended the revocation of his license. The court rejected that recommendation, finding that, at his age, revocation would effectively prohibit him from ever practicing again. Therefore, while acknowledging that his disciplinary history and conduct warranted a revocation, the court reduced the sanction solely because of his age. Matter of Alan D. Eisenberg, 2004 WI 14 (Wisconsin, January 27, 2004)
Eisenberg filed a petition for reinstatement in early 2005. A public hearing was held the following summer and several witnesses testified in opposition to reinstatement, citing his lack of civility and inability to take seriously the professional obligations of an attorney. In contrast, several of his own witnesses described him as forceful, aggressive, tough, and bright and said they were convinced that he was remorseful. The hearing referee found that Eisenberg's conduct during suspension was exemplary, that he fully complied with the terms of discipline, and that he maintained his learning in the law. Nevertheless, the referee recommended that the reinstatement petition be denied because Eisenberg had not proven that he had a proper understanding of, and attitude toward, professional standards and that he would act in conformity with them. Further, he failed to prove that his resumption of practice would not be detrimental to the administration of justice and would not subvert the public interest. The referee also found it troubling that Eisenberg did not unambiguously apologize for the conduct that led to his 2004 suspension. Eisenberg challenged the referee's report and the Supreme Court ordered the parties to file briefs on the question of whether Eisenberg had satisfied the requirements for reinstatement. A majority of the Court ruled that Eisenberg's history of disciplinary problems did not directly affect his petition for reinstatement. Rather, according to the Court, the focus for review has to be whether a petitioner for reinstatement has satisfied the burden imposed on him to show that he has the moral character to again practice law. The Court concluded that he met his burden and noted
While some of Attorney Eisenberg's past conduct has been far less than exemplary-indeed, at times it has been deeply flawed-he has already been disciplined for that bad conduct. The pertinent inquiries before us are what was the state of his conduct during the term of his suspension, i.e., since April 2004; whether he currently has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and whether he will act in conformity with them; and whether he can be safely recommended to the legal profession, the courts and the public. After a careful review of the entire record, we conclude that the answer to this question is "yes."
The majority did acknowledge that the transcript of the reinstatement hearing revealed that Eisenberg was, in some of his remarks, "cantankerous and grouchy." However, the majority reasoned that those excerpts constituted a small percentage of the 135 pages of Eisenberg's testimony. Three justices dissented, finding that Eisenberg's disciplinary history alone provided plenty of evidence to garner skepticism about his remorse.
As an aside, the Milwaukee Journal Sentinel on January 19, 2007 reported that Eisenberg said that, in the wake of the Court reinstatement decision, he would return to law practice immediately and noted that his work would entail, "probably the same kinds of things (he's) always done."
