In Matter of Disciplinary Proc. Against Brey
490 N.W.2d 15, 1992 Wisc. LEXIS 541, 171 Wis. 2d 65 (1992)
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Rule of Law:
A prosecutor who communicates with a represented criminal defendant without the consent of counsel, attempts to undermine the attorney-client relationship, and then makes false statements to a tribunal and a disciplinary board to conceal the misconduct, commits serious professional violations warranting a license suspension.
Facts:
- In October 1988, District Attorney Allen Brey charged a man with seven criminal counts.
- The defendant, who was represented by an attorney, could not make bail and remained in jail.
- On March 1, 1989, Brey went to the jail and met privately with the defendant, knowing he was represented by counsel and without counsel's consent.
- During the meeting, Brey expressed his opinion on the defendant's attorney's handling of the case and made settlement offers directly to the defendant.
- Brey told the defendant that if he disclosed the meeting to anyone, Brey would deny it had ever taken place.
Procedural Posture:
- The defendant informed his attorney of the meeting with District Attorney Brey.
- The defendant's attorney filed a grievance with the Board of Attorneys Professional Responsibility (Board).
- The defendant's attorney moved the circuit court to bar Brey from prosecuting the case.
- In a subsequent application to the court for a special prosecutor, Brey denied that the meeting with the defendant had occurred.
- During the Board's investigation, Brey denied the meeting occurred in three separate written responses.
- Two years later, Brey admitted to the professional responsibility committee that he had met with the defendant.
- In the resulting disciplinary proceeding, a referee found Brey committed professional misconduct and recommended a public reprimand.
- The Board appealed the referee's recommendation to the Supreme Court of Wisconsin, arguing for a 60-day license suspension.
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Issue:
Does a prosecutor's conduct of meeting with a represented defendant without counsel's consent, attempting to undermine the defendant's representation, and then repeatedly lying about the meeting to the court and disciplinary board warrant a sanction more severe than a public reprimand?
Opinions:
Majority - Per Curiam
Yes. A prosecutor's actions of meeting with a represented defendant without counsel's consent and then lying to the court and disciplinary board to conceal it warrant a sanction more severe than a public reprimand. Brey's misconduct was an abuse of his prosecutorial authority that threatened to subvert a criminal defendant's rights. He intentionally used his power to approach a vulnerable, incarcerated defendant and attempted to undermine the defendant's confidence in his legal counsel. His subsequent false representations to both the circuit court and the Board of Attorneys Professional Responsibility were separate, intentional acts designed to cover up his misconduct. The egregious nature of these actions and the potential for harm to the defendant render a public reprimand insufficient. A 60-day license suspension is necessary to impress upon Brey the seriousness of his ethical duties and to deter similar conduct by other prosecutors. The suspension was not longer due to mitigating factors, including Brey's sincere remorse, his eventual admission, and the fact that his actions did not ultimately result in unfairness to the defendant.
Analysis:
This decision reinforces the high ethical standards imposed upon prosecutors due to their unique position of power and public trust. It establishes that misconduct involving both an abuse of authority (improperly contacting a represented party) and subsequent dishonesty (lying to a tribunal and disciplinary body) will be treated with great severity. The court's willingness to go beyond the referee's recommendation for a reprimand signals that a cover-up is often viewed as seriously as the initial offense. The case serves as a strong deterrent, warning attorneys, particularly prosecutors, that such a combination of ethical breaches will likely result in a license suspension, not merely a public reprimand.
