September 16, In re the Matter of Disciplinary Proceedings Against Frederick P. Kessler Case No.: 08AP834-D

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1 LAW OFFICES OF JONATHAN V. GOODMAN ATTORNEYS Jonathan V. Goodman, J.D. LL.M 135 WEST WELLS STREET Also Licensed in Florida Suite 340 Associate MILWAUKEE, WISCONSIN Aaron J. Bernstein Telephone (414) Telecopier (414) September 16, 2009 Chris Paulson Chief Deputy Clerk Wisconsin Supreme Court 110 East Main Street, Suite 215 Madison, WI In re the Matter of Disciplinary Proceedings Against Frederick P. Kessler Case No.: 08AP834-D Dear Mr. Paulson: I am enclosing my original report and recommendation in the above styled case, copies of which have been sent today to counsel for the parties. At this time, I am delivering to you copies of the exhibits mid the transcript of the hearing. Sincerely, Referee V. Goodman ssp Enclosures c: ~Pa au~ul W. Schwartzenbart, Esq. Attorney for the Office of Lawyer Regulation Matthew W. O Neill, Esq. Counsel for the Respondent

2 STATE OF WISCONSIN 1N SUPREME COURT In The Matter of Disciplinary Proceedings Against FREDERICK P. KESSLER, Attorney at Law Case No. 08AP834-D REFEREE S REPORT The foregoing matter came on for hearing before Jonathan V. Goodman, Supreme Court Referee, on August I9, 2009, in Milwatd~ee, Wisconsin. PARTIES Complainant: Office of Lawyer Regulation represented by Attorney Paul W. Schwartzenbart, of Lee, Kilkelly, PauIson & Younger, S.C., One West Main Street, P. O. Box 2189, Madison, Wisconsin i 89 Respondent: Attorney Matthew W. O Neill of Friebert, Finerty & St. John, S.C., Two Plaza East, Suite 1250, 330 East Kilbourn Avenue, Milwaukee, WI represented the Respondent. Respondent, Frederick P. Kessler appeared in person. FINDINGS OF FACT Based upon the testimony of the witnesses at the hearing, the exhibits admitted into evidence, the Complaint, and the Answer of the Respondent, the Referee hereby renders the following Findings of Fact: 1. The Respondent, Frederick P. Kessler, ("Respondent"), was admitted to practice law in Wisconsin on February 9, t The Respondent resides at West Century Drive, Milwa~d ee, Wisconsin

3 3. In the spring 2004 election for the position of Wisconsin Court of Appeals Judge for District One, Charles Schudson was the incumbent seeldng reelection. In July, 2003, Attorney Joan Kessler, the spouse of the Respondent, then in private practice, declared her candidacy for the position and ran against Schudson in the campaign. 4. During his wife s campaign, Respondent acted as an advisor in her campaign, having experience in running for elective public office (T 21, Line 4). 5. On July 1, 2002, Judge Schudson wrote a letter ("Schudson Letter") to the Honorable Charles N. Clevert, Jr., United States District Court Judge for the Ulaited States Federal Court for the Eastern District of Wisconsin. The Scl~udson Letter was concerned with the sentencing of Attorney Charles Hausmarm for a criminal conviction in United States vs. Hausmann, in a proceeding pending before Judge Clevert. 6. The Schudson Letter was unsolicited. 7. The Schudson Letter was written on behalf of Hausmann, and recommended leniency in sentencing. 8. Respondent was told about the Schudson Letter by the former spouse of Attorney Charles Hausmarm. (T 26-27, Lines 24 and 2, 3). 9. Through Joan Kessler s law firm, the Respondent was able to obtain a copy of the Schudson Letter. 10. Sometime between September 29, 2003 and October 28, 2003, Respondent was given a copy of the Schudson letter and other documents by Joan Kessler. 1 I. Mary Moser ("Moser") was the spouse of the Honorable William Moser, who at all times material, was deceased, but had previously been an appellate judge for District One. Page 2 of 6

4 12. Moser disliked Judge Schudson because she perceived that he had made disparaging comments about her deceased husband and thus supported Joan Kessler s candidacy. (T 29-30, Lines 21 and 1). 13. On October 25, 2003, the Respondent attended a memorial service for the Honorable William Moser, deceased. At that occasion, Respondent talked with Moser and invited her to have lunch. (T. 30, 31, Lines 7 and 1). 14. Respondent called Moser on October 27, 2003, and scheduled a meeting at a restaurant in South Milwaukee for the following day, October 28, (T 30, line 17, T31, line 1). 15. On October 28, 2003, the Respondent met with Moser at the restaurant in South Milwaukee and gave Moser copies of parts of the judicial code of the State of Wisconsin, the Schudson Letter, and other information which Joan Kessler had obtained through her law finn. 16. At the luncheon meeting on October 28, 2003, Respondent expressed his opinion that Judge Schudson had violated the Code of Judicial Conduct and inquired as to whether or not she, (Moser) would file a complaint with ttae Wisconsin Judicial Commission. 17. Respondent sought to remain anonymous with respect to his involvement in the investigation of Judge Schudson s misconduct and the filing of a JudicialCommission Complaint. 18. At the October 28, 2003 meeting, Moser thought that she had asked the Respondent what she would say to people if they inquired as to how she heard about [the judicial misconduct of Judge SchudsonJ. Moser testified that according to her recollection, the Respondent told her in response to the question in the previous sentence, to just tell people that Page 3 of 6

5 you heard it at a cocktail party, it doesn t matter, it s punic record." (Answer of Respondent at pages 13 and 14). t9. A day or two after October 28, 2003, after considering Respondent s request, Moser told the Respondent that she would file thecomplaint against Judge Schudson. 20. During the luncheon on October 28 tla, Respondent provided Moser with a draft of a letter of complaint to the judicial commission. After editing Respondent s &-aft, on October 3 0, 2003, Moser filed a letter complaint against Schudson with the Judicial Commission based upon the Schudson Letter, which complaint was admitted into evidence as Exhibit "2". 21. On January 23, 2004, the commission notified Schudson of the Complaint. On January 26, 2004, Schudson responded, acknowledged that the Schudson Letter violated SCR (2) and apologized. 22. On March 8, 2004, the Milwattkee Journal Sentinel, a newspaper of general circulation in District One, reported on the Schudson Letter and the Judicial Commission Complaint. 23. Subsequent to March 8, 2004, the Joan Kessler Campaign ran ads using the information related to the Schudson Letter in the Complaint to the Judicial Commission al leging that Judge Schudson had violated the Judicial Code. 24. Joan Kesster prevailed in the April 2004 election for Appeals Com t Judge, District One, over the incumbent, Judge Schudson. CONCLUSIONS OF LAW I. The Wisconsin Supreme Court has subject matter jtlrisdiction over the disciplinary complaint under SCR Page 4 of 6

6 II. The Wisconsin Supreme Court has personal jurisdiction over the Respondent, under SCR 11.01, based upon his holding a license to practice law in the State of Wisconsin. IiI. Pursuant to SCR 22.16(5) the CompIainant has the burden of demonstrating by clear, satisfactory and convincing evidence that the Respondent has engaged in misconduct contrary to SCR 20:8.4(a)(c), to wit: "It is unprofessional conduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, (RPC) l~aowingly assist or induce another to do so, or do so through the acts of another; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation..." IV. That in asking Moser to write a letter of complaint against Judge Schudson to the Wisconsin Judicial Commission on or about October 28, 2003, the Respondent did not violate SCR 20:8.4(a), because there was nothing dishonest, fraudulent, or deceitful about what he told Moser in connection with the Complaint against Judge Schudson. V. In connection with the finding that in their conversation of October 28, 2003, the Respondent told Moser that upon inquiry, she heard about the misconduct of Judge Schudson at a cocktail party (the "Statement") and whether the Statement is violative of SCR 20: 8.4(c) the Referee concludes as foliows: A. That the Statement was not dishonest, fraudulent, or a misrepresentation. B. That the Referee adopts for the purposes of this recommendation the definition of"deceit" as contained in Webster s Third New International Dictionary as cited in State of Wisconsin vs. Lawrence Dalton, 98 Wis. 2d 725, 298 NW 2d. 398,404 (1980): IT]he act or practice of deceiving (as by falsification, concealing or cheating).., any trick, collusion, contrivance, false representation, or underhand practice used to defraud another. (Emphasis supplied). Page 5 of 6

7 C. That the Statement was deceptive in that it wasn t true, but there was no evidence that it was used to defraud another, and, therefore, the Complainant has not.proven by clear, satisfactory and convincing evidence Count One of its Complaint. D.. That the conduct of Respondent as alleged in Count One of the Complaint was not violative of SCR 20:8.4(c). RECOMMENDATION FOR DISPOSTION Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Count One of the Complaint of the Office of Lawyer Regulation be dismissed. Dated this / day of September, Respectfully submitted. ~. oodman Page 6 of 6