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Friday, February 19, 2010

The End of an Era: After 44 Tumultuous Years, Milwaukee Lawyer Alan Eisenberg's Law License Is Finally Revoked

Alan D. Eisenberg, notorious around Milwaukee and Wisconsin for what some call "the rude and abrasive style he employs as a trial lawyer," had his long and tumultuous legal career ended by the Supreme Court on February 18, 2010. The self-described "most persecuted professional in the state," has been alternatively described in a decision of the Wisconsin Supreme Court as "exactly the type of attorney that brings disrepute and dishonor on the legal profession." 

He has long viewed himself as a defender of the underdog. "He represented families in actions against police departments [notably, for example, the family of Ernest Lacy, probably the highest profile victim of police abuse until Frank Jude]. He represented many people in the Hmong community. He often got involved in animal rights issues, representing pet owners against local governments. In 2001, Eisenberg argued unsuccessfully before the Wisconsin Supreme Court that pet owners should be allowed to collect damages for lost companionship when their pets die through the negligence of others." [He even represented a "Bridezilla."]  But in addition to his legal work "[i]n 2002, he ran as a Reform Party candidate for governor (the only Jewish candidate ever to run for Wisconsin governor). He was a Greenpeace member who organized protests against bow deer hunting predicting there "will be human deaths" if the hunt was allowed. He writes occasionally for El Conquistador, a Milwaukee newspaper, and hosts a Sunday night talk show on WRJN-AM (1400)." He has also been involved in promoting boxing and ran for Milwaukee County Clerk in 1988. And many might not know he is a competitive table tennis player.

So what led to the demise of this Wisconsin legal institution? Or perhaps importantly, what does it really take to finally have a license to practice law revoked in the state of Wisconsin? Despite its length, what is set forth below is just a small portion of the story of the downfall of soon-to-be former-Attorney Alan D. Eisenberg:

Only four years after becoming an attorney, Eisenberg, along with his father and law partner, was suspended from practicing law for one year for "irresponsible and unprofessional conduct." This simplistic characterization does not accurately convey the nature of the conduct that led to this first disbarment. Beginning only about two years after Alan was first licensed, the Eisenbergs engaged in a systemic pattern of harassment of a county judge (not a circuit judge, as the Milwaukee Journal Sentinel incorrectly reported) that was so vicious and pervasive, it ultimately culminated in the judge's suicide which was subsequently subject to a secret John Doe investigation for possible criminal charges. From the Wisconsin Supreme Court's decision, and contemporaneous news articles it appears that the Eisenbergs learned that the attorney had a sexual relationship with a female attorney and sought to use this as leverage to force the judge off the bench. The Eisenbergs took out newspaper ads soliciting complaints against the judge which they intended to then utilize as additional leverage in their personal vendetta against the judge. Further, they told anyone who would listen, including the news media, that the judge was going to resign soon or was about to face unspecified criminal charges (allegations that appear not to have been substantiated). Through these means, the Eisenbergs coerced the judge to appoint them to a committee that would oversee the administration of his court, a fact that the Eisenbergs issued in a press release "for the purpose of aggrandizing themselves and demonstrating their subjugation of and their dominance over the Judge." "[A] reference to the Eisenberg law firm as being 'nationally and internationally famous' was deleted" from the press release.

Alan got back his license to practice law on October 2, 1972, and a few years later was again facing allegations of unprofessional conduct.

In 1977, in representing a defendant accused of murder and arson, Eisenberg demeaned the murder victim in the press calling the victim "a known hellraiser, an alcoholic and a wife beater," and "a rotten no-good son-of-a-bitch." The Rules of Professional Conduct prohibit an attorney from making such statements prior to trial, in part, out of concern that the jury pool may be corrupted. In this same case, Eisenberg entered into a book contract where he and his client would share profits of the book sale, an arrangement that was clearly contrary to ethical rules. But Eisenberg did get some national publicity as a result of this case. 

In 1982, in a closing argument during a separate criminal case, Eisenberg made the following statements regarding the prosecutor:

"There is no excuse for that sleazy scum bag tactic."

"He, you dirty rotten—how can you leave that out, Mr. [ ]? Does that stink. Talk about a smelly odor. That's what this case is all about. The man is sitting there like a dummy."

"Mr. [ ], you don't even know what you are talking about or what you are doing in this courtroom."

These statements were found to constitute, in part, "offensive personality" in violation of the Attorney's Oath. 

In 1984 he ghost-wrote a civil complaint for a plaintiff that the plaintiff then filed pro se as part of Eisenberg's efforts to obstruct the extradition of a client (a defendant could not be extradited if there was a civil case pending against him and so Eisenberg found a person to file a lawsuit against the client). Such ghost-writing was found to violate an attorney's obligation of honesty. When this matter was under investigation, Eisenberg was found to have failed to disclose all relevant facts to investigators, an additional violation of his ethical responsibilities.

Eisenberg also made "vulgar remarks concerning a state trooper who was to appear as a witness against his client in circuit court," which were against found to constitute offensive personality.

In June of 1982 Eisenberg was representing a president of a food service business in a dispute with workers and made the following false statements to a reporter:

"(1) Attorney General of Wisconsin had written him a letter stating that, but for the running of the statute of limitations, opposing counsel was chargeable with false swearing and perjury in his application to the governor for a pardon from a criminal conviction.

"(2) The Attorney General told him that opposing counsel had obtained his license to practice law by fraud.

"(3) He had reliable reports that opposing counsel had offered cocaine to a certain person or that person's brother at a party."

A defamation suit was brought against Eisenberg for these statements and a jury ordered Eisenberg to pay

$38,000 for injury to the attorney's reputation, $11,000 for his loss of income and $500,000 in punitive damages. The trial court upheld the compensatory awards but reduced the punitive award to $250,000. The matter was settled on undisclosed terms while pending on appeal. The judge presiding in that defamation action said at the conclusion of the case:

"The jury verdict reflects a sense of outrage at this conduct, a sentiment shared by this Court. Eisenberg's conduct as found by the jury represents an attack and an assault on the American system of civil justice. He engaged in lawless and ruthless conduct with no legitimate purpose or excuse .... To attack another lawyer personally simply on the basis of his representation of opposing clients is totally wrong. To do so by falsely accusing the attorney of morally reprehensible crimes is outrageous conduct. "

When an attorney's license to practice has been suspended for six months or more, it is not automatically reinstated at the end of the period for revocation. Rather, the attorney has to petition for reinstatement. An initial petition for reinstatement was denied by the Wisconsin Supreme Court on June 24, 1991. The court noted:

Eisenberg had engaged in prior to the license suspension with respect to pension and profit sharing plan accumulations he refused to pay to five former employees who resigned from his employment. As to the latter, Mr. Eisenberg made the requisite distributions only after the former employees commenced litigation in federal court.

The federal action resulted in a $81,349 Judgment entered against Mr. Eisenberg . . . .

However, Eisenberg did eventually get his law license back and in 1996 Eisenberg was publicly reprimanded for misconduct during his 1988 suspension and his subsequent reinstatement regarding the handling of his trust account during his period of suspension.

On September 2, 1997, in one of the more amusing episodes of Eisenberg's misconduct, Eisenberg was sitting next to the bailiff in the circuit court courtroom waiting for his client's case to be called.  Eisenberg had a small toy police car in his pants pocket which his wife had given him as a gag gift.  The toy car, when squeezed, emitted a siren sound which lasted approximately five to ten seconds.  When Eisenberg leaned over to ask the bailiff a question, the siren was activated and disrupted the trial court.  Eisenberg apologized to the court, and said that he accidentally triggered the car's siren.  The court accepted Eisenberg's apology, but warned him that "it would not be an accident again."

Later, Eisenberg's case was called and a hearing on his client's suppression motion began.  During the direct examination of the arresting officer, Eisenberg's client began whispering to him.  Eisenberg leaned over to hear what his client was saying, and triggered the toy car's siren for a second time.  As Eisenberg took the car out of his pocket and began to apologize again, the trial court stated, "that will cost you a hundred dollars costs."

The first of these violations involved a client who went to Eisenberg's firm for representation in a divorce. She paid a $5,000 retainer and sought to be continued to be represented by a former Eisenberg associate after he left the Eisenberg firm. The associate claimed that more than half of the retainer had been unearned and thus should be returned to the client. Eisenberg said that all of the retainer had been earned and fabricated billing records to support this contention, which were then incorporated into an affidavit that he filed in court. Further, Eisenberg refused to hand his file over to the new attorney.

In a second matter, Eisenberg filed an application to practice law in California on a limited basis without having to be admitted to the California Bar. As part of the application, Eisenberg falsely stated he had never been previously suspended from legal practice.

In a hearing before the Wisconsin Department of Transportation, "he is alleged to have essentially taken over the hearing, refused to obey the procedural rules of the tribunal, and then left with his client before the hearing was over, all deemed to be conduct intending to disrupt the hearing." The person charged with investigating these allegations found "that Attorney Eisenberg was 'rude, abusive, controlling, disrespectful,' had 'essentially high-jacked the hearing by ignoring [the examiner's] instructions, telling her to be quiet, and doing what he wanted to do,' and 'act[ed] much like a spoiled child.'"

Eisenberg: I'm going to conduct an examination of my client.

Examiner: You will ask the questions after I ask the questions.

Eisenberg: No, I will make a statement.

Examiner: You will, I will give you—

Eisenberg: I, I, I'm not interested in your procedures or your rules. I'm going to make a statement of explanation. 644 I'm going to ask him a question, and then you can ask him whatever you want.

Examiner: I can let you make a statement, but I will ask him the questions first.

Eisenberg: I will ask him the questions first.

Examiner: Mr. Eisenberg, this is, this is the way we do our hearings (inaudible)—

Eisenberg: This is the way I do your hearings.

The hearing continued with a similar tone, until Eisenberg and his client left before it was over.

Alan Eisenberg is not just an attorney, but also a real estate agent (a business pursuit that sustains him through his periods when his law license is suspended). These lines were blurred when he entered into a listing contract with a legal client thus creating a conflict of interest that he did not properly advise his client about.

In another matter, Eisenberg was representing a client in Oregon and his client received a call from a detective asking to speak to his client about an unrelated matter.

Eisenberg: It's a life or death emergency; if I don't get a call from him, you tell him I'm going to have his badge.

Dispatcher: Can I tell him what it's about?

Eisenberg: You got—It's a life or death emergency.

Dispatcher: Can I tell him what the emergency is?

Eisenberg: I said what

Dispatcher: It may speed up . . .

Eisenberg: You get the asshole on the phone, you have him call me now.

This conduct was found to constitute "offensive personality" as well as various other violations of the Rules of Professional Responsibility.

The investigator recommended a revocation of Eisenberg's law license as a result of these numerous incidents.

The referee noted as a mitigating factor that Attorney Eisenberg has performed work with community and civic groups. However, as aggravating factors the referee noted his substantial disciplinary history and what the referee characterized as: (1) a propensity to lie under oath; (2) a propensity to minimize culpability by trying to place blame on others, portraying himself as the victim, and claiming there was no real injury; and (3) no demonstration of remorse. The referee further stated:

Eisenberg is exactly the type of attorney that brings disrepute and dishonor on the legal profession. . . . [T]he fact that Eisenberg has continued to conduct himself in a way that violates these standards is simply an indication of his distain [sic] for the appropriate means of conducting oneself as an attorney. . . . [H]e has absolutely no intention of changing.

The Wisconsin Supreme Court declined to revoke Eisenberg's license in 2004 because "[g]iven Attorney Eisenberg's age, revocation might effectively prohibit him ever practicing law again." For all these violations, the court suspended Eisenberg's license to practice law for 1 year effective April 6, 2004.

When Eisenberg petitioned for reinstatement on January 11, 2005 following this revocation, a public hearing was held at which "[s]everal witnesses testified in opposition to reinstatement of Attorney Eisenberg's license, citing his lack of civility and inability to take seriously the professional obligations of an attorney." The investigator recommended that reinstatement be denied. In a 4-3 decision, a bare majority of the Wisconsin Supreme Court disagreed and reinstated Eisenberg's license to practice law on January 19, 2007.

The dissenting Justices felt that Eisenberg did not demonstrate remorse and noted numerous examples that it believed corroborated this belief:

When the Office of Lawyer Regulation (OLR) attorney cross-examined Attorney Eisenberg, the following exchange occurred:
OLR: Mr. Eisenberg, you mentioned in your testimony that you feel you have to be very circumspect in terms of your professional behavior because there's a, quote, "new set of rules for you," end of quote—

Eisenberg: Right.

OLR:—do you remember that testimony?

Eisenberg: It's accurate, too.

OLR: In a sense you're telling this Referee and us and everyone here that there's a different set of professional code rules for Alan Eisenberg as compared to all other attorneys?

Eisenberg: There sure is.

OLR: There is?

Eisenberg: Yes, there is. Yes. It's called State of Wisconsin Office of Lawyer Regulation versus Alan Eisenberg. Those are the rules. That's the law of the land. That's the case that dictates what I must do, how I must behave. That's the rule of me.

With such a distorted view of the rules of conduct, I cannot agree with the court that Attorney Eisenberg has satisfied his burden of proving that he "has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards."

In 2007 he was ordered to pay $3785.70 for bringing a frivolous action. Likewise, in 2005 and 2001 the court of appeals determined that Eisenberg filed a frivolous lawsuits.

But his long history of being disciplined by the Office of Lawyer Regulation did not stop the State Bar of Wisconsin from having Eisenberg teach a continuing legal education course for other lawyers just over seven months after he narrowly got his law license back.  This program titled A Snitch in Time: The Rat Laws,  was designed to teach attorneys "about the need for informants, the government's obligation to protect them, and their proper role in achieving your desired results." Interested attorneys can still pay $125.00 to view Eisenberg's two-hour program.

As the dissent in his reinstatement proceedings seemed to anticipate, Eisenberg soon again faced new charges of unprofessional conduct. In fact, Eisenberg had his law license for less than 4 months before the Office of Lawyer Regulation issued a new charge of misconduct against him. However, it is worth noting that this most recent alleged misconduct is not a new act of misconduct and instead related to conduct that occurred in 2001, which was before Eisenberg's law license had last been suspended and subsequently reinstated. This was the proverbial straw that broke the horse's back and thus led to the revocation of Eisenberg's license to practice law, the most serious sanction that can be imposed upon an attorney in Wisconsin, effective April 1, 2010.

Eisenberg represented a husband in a divorce action. The husband was also facing criminal charges for alleged crimes against his wife, and Eisenberg represented him in the criminal case as well. On March 21, 2001 at about 8 pm, the jury returned a verdict acquitting the defendant of all charges. The very next day, Eisenberg filed a civil complaint on the husband's behalf against the wife alleging that the wife had the husband falsely arrested and maliciously prosecuted, his character defamed, et cetera. This suit was filed just before a hearing in the divorce action and during that divorce hearing, Eisenberg called the wife "a liar and a perjurer.  Attorney Eisenberg also told the commissioner that the jury in the criminal case had 'stormed the judge's chambers and demanded to know why the woman was not being prosecuted for perjury.'"

Eisenberg then sent a copy of his civil complaint to a local newspaper and later spoke with a reporter and repeated the allegation that following the criminal trial jurors stormed the judge's chambers asking that the wife be prosecuted for perjury. This was published in the newspaper. Eisenberg again repeated these allegations in a hearing on a motion to dismiss the complaint. Eisenberg further refused to participate in a court ordered mediation.

The complaint was eventually dismissed as frivolous and malicious and default judgment was entered in favor of the wife as to the counterclaims she filed against the husband. Eventually, the wife was awarded $121,905.78. The court of appeals affirmed the circuit court and Eisenberg was ordered to pay an additional $22,298.93 in appellate costs and fees, of which $4,062 related to enforcement of the order for appellate costs.
Investigation revealed that Eisenberg's oft-repeated and publicized statement regarding jurors demanding that the wife be prosecuted for perjury was false. To the contrary, the evidenced showed that during a routine question-and-answer session at the end of the case where the judge met with jurors in the criminal case in the jury room about any questions the jury might have about their experience, a member of the jury expressed concerned that their verdict might mean that the victim could be subjected to perjury, which the judge understood as something the  juror did not want to happen.

It was determined that "Attorney Eisenberg's conduct in the civil action became a vendetta on the part of Attorney Eisenberg to personally attack, harass, and maliciously injure [the wife], which vendetta continued in the disciplinary proceeding when he subpoenaed [the wife] to appear without any purpose relevant to the proceedings." Notable to the Supreme Court, at the disciplinary proceedings, despite being represented by counsel, Eisenberg cross-examined the wife himself, leading to her to break down in tears, conduct he berated as "fakery."

In light of "Eisenberg's continued and persistent inability to comport himself with the behavior that is expected of attorneys," the Wisconsin Supreme Court unanimously voted to revoke Eisenberg's law license. Because there is no such thing as permanent disbarment in Wisconsin, he will be eligible for reinstatement in five years, but as a practical matter, this decision likely ends the legal career of the 68-year-old.

Despite being repeatedly disciplined for misconduct, he has not had any shortage of clients. As of today, he is listed as counsel in 152 open Wisconsin circuit court cases across the state. He has until April Fools Day to wrap those cases up. No matter what your opinion of him, Eisenberg shall not be soon forgotten in the Wisconsin legal community.

1 comment:

  1. Anonymous10:34 PM

    Impressive distillation. I've had conversations with Alan...and he is a forceful personality, to say the least.

    Whether every aspect of what the State presented was true, the detail and crosslinks you provide are thorough.