2020 WI 89

SUPREME COURT OF WISCONSIN

CASE NO.: 2019AP001170-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings 

Against Benjamin A. Hanes, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

v.

Benjamin A. Hanes,

 Respondent.

DISCIPLINARY PROCEEDINGS AGAINST HANES

OPINION FILED: December 9, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: 

SOURCE OF APPEAL:

COURT: 

COUNTY: 

JUDGE: 

JUSTICES:

Per Curiam.

NOT PARTICIPATING:

 

ATTORNEYS:
2020 WI 89

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2019AP1170-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings 

Against Benjamin A. Hanes, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

v.

Benjamin A. Hanes,

 Respondent.

FILED

DEC 9, 2020

Sheila T. Reiff

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license 

suspended. 

¶1 PER CURIAM. We review the report and the 

supplemental report of Referee Robert E. Kinney, recommending 

that Attorney Benjamin A. Hanes be suspended for a period of two 

years for professional misconduct, and that he should pay the 

full costs of this proceeding, which are $7,704.67 as of March 

17, 2020. The referee further recommended that we require 

Attorney Hanes to fulfill certain conditions before he can seek 

reinstatement. 
No. 2019AP1170-D 

2

¶2 We accept in part the referee's report, as 

supplemented, and we agree with the referee that the seriousness 

of Attorney Hanes' misconduct merits a severe sanction. We 

suspend Attorney Hanes' license to practice law for a period of 

four years. We impose modified conditions on Attorney Hanes'

future reinstatement and we impose the full costs of this 

proceeding on Attorney Hanes. The Office of Lawyer Regulation 

(OLR) did not seek restitution and no restitution is ordered.

¶3 Attorney Hanes was admitted to the practice of law in 

Wisconsin in 2011. He worked as an assistant district attorney 

or contract assistant district attorney in Waushara, Winnebago, 

and Calumet counties. Attorney Hanes has not previously been 

the subject of professional discipline. On October 31, 2017 his 

license to practice law in Wisconsin was administratively 

suspended for failure to pay state bar dues and certify trust 

account information. On May 22, 2018, his license to practice 

law was further administratively suspended for failure to comply 

with continuing legal education requirements. Attorney Hanes'

law license remains suspended.

¶4 On June 27, 2019, the OLR filed a four-count 

disciplinary complaint against Attorney Hanes based on criminal 

conduct he committed in August 2016 and January 2017. The OLR's 

complaint alleged that: (1) by engaging in conduct leading to a 

Columbia County misdemeanor criminal conviction for fourthdegree sexual assault, Attorney Hanes violated Supreme Court 
No. 2019AP1170-D 

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Rule (SCR) 20:8.4(b) (Count One);1 (2) by failing to notify the 

OLR of his Columbia County misdemeanor criminal conviction, 

Attorney Hanes violated SCR 21.15(5),2 enforceable via 

SCR 20:8.4(f) (Count Two);3 (3) by engaging in conduct leading to 

three Calumet County felony criminal convictions for seconddegree recklessly endangering safety, fleeing/eluding an 

officer, and bail jumping, Attorney Hanes violated SCR 20:8.4(b) 

(Count Three); and (4) by failing to notify the OLR of his 

Calumet County felony criminal convictions, Attorney Hanes 

violated SCR 21.15(5), enforceable via SCR 20:8.4(f). The OLR 

sought a 90-day license suspension.

¶5 Referee Kinney was appointed and conducted a 

scheduling conference. After that conference, the parties 

 

1 SCR 20:8.4(b) provides: "It is professional misconduct 

for a lawyer to commit a criminal act that reflects adversely on 

the lawyer's honesty, trustworthiness or fitness as a lawyer in 

other respects."

2 SCR 21.15(5) provides: 

An attorney found guilty or convicted of any 

crime on or after July 1, 2002, shall notify in 

writing the office of lawyer regulation and the clerk 

of the Supreme Court within 5 days after the finding 

or conviction, whichever first occurs. The notice 

shall include the identity of the attorney, the date 

of finding or conviction, the offenses, and the 

jurisdiction. An attorney's failure to notify the 

office of lawyer regulation and clerk of the supreme 

court of being found guilty or his or her conviction 

is misconduct. 

3 SCR 20:8.4(f) provides: "It is professional misconduct 

for a lawyer to violate a statute, supreme court rule, supreme 

court order or supreme court decision regulating the conduct of 

lawyers."
No. 2019AP1170-D 

4

submitted a stipulation and no contest plea to the referee. 

Attorney Hanes agreed that the referee could use the complaint 

as an adequate factual basis for a determination of the alleged 

misconduct, on the understanding the referee would recommend the 

level of discipline sought by the OLR director, namely, a 90-day 

suspension of his law license.

¶6 The referee conducted a hearing on the proposed 

stipulation on October 29, 2019. At the hearing, the referee 

noted the absence of underlying information pertaining to the 

criminal convictions and asked Attorney Hanes, "Do you wish to 

share the documentation that's in these criminal files with me?" 

Attorney Hanes declined to share the information. Attorney 

Hanes attributed his misconduct, in part, to an anxiety disorder 

but offered no additional evidence to substantiate that 

statement. 

¶7 The referee issued a report and recommendation on 

January 22, 2020. The referee deemed the proposed 90-day 

license suspension grossly inadequate. The referee expressed 

frustration with the scant factual record before him, which did 

not include the underlying criminal complaints, witness 

statements, or transcripts from the underlying criminal 

proceedings. After explaining how this underdeveloped record

hampered his task of making an informed recommendation, the 

referee recommended a two-year license suspension, based 

primarily on In re Disciplinary Proceedings Against Evenson,

2015 WI 38, 361 Wis. 2d 629, 861 N.W.2d 786.
No. 2019AP1170-D 

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¶8 The OLR filed a motion to supplement the record and a 

motion for reconsideration. The OLR identified no error in the 

referee's report and did not ask the referee to alter his 

recommendation. Rather, the OLR stated that it had failed, 

inadvertently, to introduce the transcripts of the plea and 

sentencing hearings from Attorney Hanes' two criminal cases. It 

provided that information and also explained its recommendation 

for a 90-day suspension, citing numerous prior disciplinary 

cases, as support. 

¶9 After receiving no objection from Attorney Hanes, the 

referee granted the OLR's motion and reopened and supplemented 

the record with the additional information, some of which we 

recount here. 

¶10 According to the record, as supplemented, on August 

26, 2016, Attorney Hanes and others went out for dinner and 

drinks. Afterward, the group returned to an apartment, where a 

woman in the group fell asleep on a couch. While she was 

sleeping, Attorney Hanes sexually assaulted her. After she woke

up, Attorney Hanes again assaulted her. The woman left and 

reported the assault to police. On August 29, 2016, Attorney 

Hanes was charged with one felony count of second-degree sexual 

assault of an unconscious victim and one misdemeanor count of 

fourth-degree sexual assault. State v. Hanes, Columbia County 

Case No. 2016CF412. 

¶11 On July 20, 2018, Attorney Hanes was convicted of 

misdemeanor fourth-degree sexual assault; the felony count was 

dismissed. He was sentenced to one-year probation and was 
No. 2019AP1170-D 

6

assessed costs and restitution. Attorney Hanes was also 

enjoined from contact with the victim. 

¶12 Attorney Hanes failed to report his Columbia County 

criminal conviction to the OLR. 

¶13 Meanwhile, on January 4, 2017, while released on bail 

in the Columbia County case, Attorney Hanes was pulled over by a 

Calumet County sheriff for erratic driving. Attorney Hanes'

driver's license was revoked at the time and, during the stop, 

the sheriff noticed items in the vehicle commonly associated 

with drug use. 

¶14 After disobeying the sheriff's command to exit his 

car, Attorney Hanes drove off and a high speed chase ensued. 

When law enforcement finally cornered Attorney Hanes, he tried 

to flee on foot; he was ultimately subdued by a Taser. At his 

sentencing hearing it was noted that Attorney Hanes:

[s]werved into oncoming traffic a number of - on a 

number of occasions, blew through a red light - blew 

through two red lights . . ..

[a]nd then even after the defendant's vehicle was 

partially boxed in, the defendant did still try to 

leave, and that's when the window was shattered, his 

driver's side window was shattered ultimately stopping 

the vehicle . . .. 

Ultimately he was tased on the ground because of his 

level of noncompliance and the inability to get him to 

stop moving and stop fighting.

¶15 On January 5, 2017, Attorney Hanes was charged with 

second-degree recklessly endangering safety, fleeing/eluding an 

officer, and bail jumping, all felonies. He was also charged 

with two misdemeanor counts: resisting/obstructing an officer 
No. 2019AP1170-D 

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and operating while revoked. State v. Hanes, Calumet County 

Case No. 2017CF002.

¶16 On December 12, 2017, Attorney Hanes was convicted of

three felonies: second-degree recklessly endangering safety, 

fleeing/eluding an officer, and bail jumping. The two 

misdemeanor counts were dismissed but read in. Attorney Hanes 

was sentenced to one year in jail with six months of that time 

stayed, and three years of probation. He was ordered to pay 

costs and cooperate with the OLR. 

¶17 Attorney Hanes failed to report his Calumet County 

criminal convictions to the OLR. 

¶18 In February 2020, after receiving the factual 

background information recounted above, the referee issued a 

supplemental report and recommendation. Clearly, the referee 

was not mollified by the OLR's motion to supplement the record. 

The referee criticized the OLR's method of trying to "average"

sanctions imposed in prior cases and expressed skepticism about 

the OLR's claim that it typically files underlying documentation 

when a complaint is predicated on a criminal conviction. The 

referee maintained his earlier determination that the Evenson

case, which imposed a 30-month suspension, was the most 

instructive precedent. 

¶19 In Evenson, the lawyer approached an obviously 

intoxicated young woman outside a bar one night. She agreed to 

leave with the lawyer and he provided her "Molly" (commonly, 

known as "ecstasy") and they had sexual intercourse at his law 

office. Attorney Evenson then took her to his home where they 
No. 2019AP1170-D 

8

had more alcohol and again engaged in sexual intercourse. The 

next day, the woman awoke bruised, and had difficulty recalling 

what had happened. She notified police.

¶20 Attorney Evenson eventually pled guilty to one count 

of felony delivery of a schedule I drug and two counts of 

fourth-degree sexual assault. His sentence was stayed, and he 

was placed on probation for three years, with a condition of 

nine months in the county jail. A disciplinary proceeding 

followed; this court accepted a stipulation and imposed a 30-

month license suspension.

¶21 The referee acknowledged factual distinctions between 

this case and Evenson, but wrote that it was difficult to 

reconcile "the OLR's recommendation for a three-month suspension 

here with its recommendation for a 30-month suspension in 

Evenson." The referee reaffirmed his recommendation for a twoyear license suspension and the imposition of full costs. Given 

evidence of Attorney Hanes' substance abuse, the referee further 

recommended that "upon the filing of a petition for 

reinstatement, Attorney Hanes should be required to show that he 

has successfully completed an AODA treatment program and has 

maintained complete sobriety for at least the previous one year 

prior to filing his petition."4

 

4 During his sentencing hearing in the Calumet County case, 

Attorney Hanes acknowledged that he had been required to attend 

an intensive outpatient treatment but did not complete the 

program.
No. 2019AP1170-D 

9

¶22 No appeal was filed, so we consider the referee's 

report and supplemental report under SCR 22.17(2). This court 

will adopt a referee's findings of fact unless they are clearly 

erroneous. Conclusions of law are reviewed de novo. See In re 

Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 

Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever 

sanction it sees fit, regardless of the referee's 

recommendation. See In re Disciplinary Proceedings Against 

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶23 By order dated June 19, 2020, this court issued an 

order directing the parties to show cause why this court should 

not suspend Attorney Hanes' law license for at least two years 

and impose the full costs of this proceeding upon Attorney 

Hanes. The OLR filed a response on July 2, 2020, standing by 

its initial recommendation for a 90-day license suspension. 

Attorney Hanes did not respond.

¶24 There is no showing that the referee's findings of 

fact are clearly erroneous and we adopt them. We turn to the 

referee's conclusion that Attorney Hanes violated the Supreme 

Court Rules set forth above. The referee explicitly found that 

the allegations contained in the OLR's complaint constitute an 

adequate factual basis for the four counts of attorney 

misconduct. 

¶25 A criminal conviction is not per se evidence of 

misconduct. In re Disciplinary Proceedings Against Johns, 2014 

WI 32, 353 Wis. 2d 746, 847 N.W.2d 179 (holding that lawyer's 

conduct did not violate SCR 20:8.4(b) in light of the record 
No. 2019AP1170-D 

10

evidence indicating, among other things, the exceedingly 

anomalous nature of the lawyer's conduct). We consider 

independently whether each of the criminal acts committed by 

Attorney Hanes reflects adversely on his honesty, 

trustworthiness, or his "fitness as a lawyer in other respects."

In re Disciplinary Proceedings Against Horsch, 2020 WI 10, 390 

Wis. 2d 99, 937 N.W.2d 925. 

¶26 This is a fact-dependent inquiry. The ABA Comment [2] 

to SCR 20:8.4 provides some guidance as to what crimes reflect 

adversely on fitness as a lawyer. It states, inter alia:

Although a lawyer is personally answerable to the 

entire criminal law, a lawyer should be professionally 

answerable only for offenses that indicate [a] lack of 

those characteristics relevant to law practice. 

Offenses involving violence, dishonesty, breach of 

trust, or serious interference with the administration 

of justice are in that category. A pattern of 

repeated offenses, even ones of minor significance 

when considered separately, can indicate indifference 

to legal obligation.

¶27 We have no difficulty concluding that Attorney Hanes'

criminal acts, which involved sexual contact without consent and 

behavior that "endangered the public and law officers," reflect 

adversely on Attorney Hanes' fitness as a lawyer. We affirm the 
No. 2019AP1170-D 

11

referee's conclusion that Attorney Hanes committed the 

professional misconduct as alleged in the complaint.5 

 

5 The referee raised certain concerns in his reports. It is 

clear that the parties expected to conclude this matter swiftly, 

by stipulation. This goal was hampered by a skeletal complaint, 

a sparse record, and a disciplinary recommendation that the 

referee deemed seriously inadequate. The referee's irritation 

with this case is palpable. In the 26 pages that comprise his 

report and supplemental report he describes at length his 

frustration with crafting a sanction with what he considered 

insufficient information. The referee suggests that the OLR 

should be required to "file copies of the entire criminal 

proceedings, including transcripts of sentencing hearings, in 

all cases where the allegations of professional misconduct are 

based on criminal convictions." (Emphasis in original). He 

suggests that our rules fail to provide guidance for considering 

comprehensive stipulations, stating that "it is unclear what the 

job of the referee is." He raises a litany of questions, such 

as "If the parties agree to everything, as here, may the hearing 

be dispensed with altogether?"; and "But what, then, is the 

proper role of the referee in this situation?"; and "But how is 

this [review] to be accomplished if no hearing has been held, or 

a hearing has been held but only very limited?"; and "Was the 

referee too cautious?"; and "Could and should the referee have 

called the custodian of the criminal files in Columbia and 

Calumet Counties?" He suggests possible amendments to the 

Supreme Court Rules, see, e.g., Supp. Referee Report at 8, fn. 5 

("the easiest solution would be to amend SCR 22.12 . . . "). 

The terms of a stipulation may guide the manner in which a 

referee conducts a proceeding but the referee's role remains the 

same: to make factual findings, independent conclusions of law 

regarding alleged misconduct, and an independent recommendation 

as to discipline which may include conditions or restitution, as 

appropriate. See, e.g., SCR 21.08(3); In re Disciplinary 

Proceedings Against Stern, 2013 WI 46, 347 Wis. 2d 552, 830 

N.W.2d 674; Referee Handbook 2.N.(2). If a record before the 

referee is inadequate to permit the referee to fulfill all or 

part of this charge, a referee may reject a stipulation, order 

additional briefing, or advise the parties that an evidentiary 

hearing or evidentiary submissions will be required.
No. 2019AP1170-D 

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¶28 We turn to the recommended sanction. We firmly agree 

with the referee that the proposed 90-day suspension was too 

low; indeed, we are surprised that the OLR continues to defend 

its recommendation. A suspension of such brevity would unduly 

depreciate the seriousness of Attorney Hanes' misconduct, namely 

convictions for sexual assault and recklessly endangering 

safety, which caused harm to the victim and put the lives of law 

enforcement personnel and the public at risk. We also agree 

with the referee's assessment of the aggravating and mitigating 

factors, including the referee's determination that Attorney 

Hanes' anxiety is not a mitigating factor in this case, given 

the absence of evidence sufficient to find a causal connection 

between any medical condition and the misconduct.6 In re 

Disciplinary Proceedings Against Morse, 2019 WI 53, 386 

Wis. 2d 654, 927 N.W.2d 543. On consideration of the record, 

the report, and the OLR's response to our order to show cause, 

we have determined that a four-year suspension is appropriate. 

¶29 The Evenson case, imposing a 30-month suspension, 

provides the most instructive precedent. Attorney Evenson's 

misconduct stemmed from his conviction for, inter alia, fourthdegree sexual assault of a vulnerable individual who was not his 

client. Other caselaw confirms that severe sanctions are 

appropriate when attorneys engage in predatory sexual misconduct 

 

6 We agree, further, that the evidence of substance abuse 

merits the imposition on certain conditions should Attorney 

Hanes seek reinstatement of his law license. We have modified 

the proposed conditions to include the involvement of the 

Wisconsin Lawyers Assistance Program.
No. 2019AP1170-D 

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against a vulnerable individual. In In re Disciplinary 

Proceedings Against Voss, 2011 WI 2, 331 Wis. 2d 1, 795 

N.W.2d 415, the OLR filed a disciplinary complaint against an 

attorney accused of engaging in sexual relations with a female 

client who had an extensive and severe history of various 

psychiatric disorders and alcohol dependency; she was the 

subject of a series of emergency detentions and chapter 51 

commitments. The client eventually told her case worker that 

Attorney Voss had sexually assaulted her. When the matter was 

reported, Attorney Voss sought to persuade his client, her 

family, and two circuit court judges not to pursue criminal 

charges, disclosing embarrassing personal information about the 

client. Ultimately, no criminal charges were filed but the 

referee concluded Attorney Voss had committed five counts of 

professional misconduct and recommended a one-year license 

suspension. 

¶30 We suspended Attorney Voss for four years and eight 

months, imposed a no contact order, and ordered the entire file 

and record in this matter remain confidential and sealed. We 

said: "Although we ultimately chose not to revoke his license 

to practice law, a lengthy suspension is required to effectuate 

the purposes of Wisconsin's attorney regulatory system. A 

lesser sanction would unduly depreciate the seriousness of 

Attorney Voss's misconduct." Id., ¶¶33-34, 39 (citing In re 

Disciplinary Proceedings Against Woodmansee, 147 Wis. 2d 837, 

434 N.W.2d 94 (1989) (imposing three-year suspension upon lawyer 

who engaged in coercive sexual behavior with a vulnerable 
No. 2019AP1170-D 

14

client, resulting in conviction for fourth-degree sexual 

assault).

¶31 The cases cited by the OLR do not persuade us that a 

lesser sanction is merited. We note that aside from Evenson, 

few of those cases involved sexual assault, and In re 

Disciplinary Proceedings Against Strigenz, 185 Wis. 2d 370, 517 

N.W.2d 190 (1994) (imposing one-year suspension for nonconsensual sexual contact with a vulnerable victim, resulting in 

a conviction for fourth-degree sexual assault) dates from 1994.

As the New Jersey Supreme Court observed when rendering a 

disciplinary decision against an attorney who committed sexual 

misconduct:

We have traveled a far way from tolerance of sexual 

misconduct in the workplace and in our profession. We 

recognize the psychological damage that can be 

inflicted on the victims of sexual abuse, who silently 

suffer and do not complain because they feel powerless 

to do so. The sexual abuse of a client is 

unacceptable in any profession and in any business 

setting, and cannot be tolerated in our profession, 

which holds as sacred the dignity of the individual. 

. . .

Attorneys who commit sexual crimes against their 

clients take from their victims something more 

profound than money or goods; they take from their 

victims their dignity and psychological well-being. 

Such conduct is grossly incompatible with the 

standards of professionalism expected of attorneys.

In Re Gallo, 178 N.J. 115 (2003) (imposing three-year suspension 

on attorney found guilty of various sexual crimes with four 

different client-victims). We acknowledge that the individual 

Attorney Hanes sexually assaulted was not his client, a 
No. 2019AP1170-D 

15

distinction that is relevant because a lawyer-client 

relationship implicates additional ethical concerns. 

Nonetheless, his conduct – which included not only sexual 

assault but a separate incident of criminally reckless conduct 

that jeopardized the lives of law enforcement officers and the 

public - is "grossly incompatible with the standards of 

professionalism expected of attorneys." Id. The seriousness of 

Attorney Hanes' misconduct merits a four-year suspension. 

¶32 Finally, we consider whether we should impose the full 

costs of this proceeding on Attorney Hanes. We have considered 

the matter and have determined that it is appropriate to impose 

the full costs of this proceeding on Attorney Hanes.

¶33 IT IS ORDERED that the license of Benjamin A. Hanes to 

practice law in Wisconsin is suspended for a period of four 

years, effective the date of this order.

¶34 IT IS FURTHER ORDERED that Benjamin A. Hanes'

administrative suspensions for failure to pay State Bar dues, 

noncompliance with continuing legal education requirements, and 

failure to submit the required trust account certification to 

the State Bar shall remain in effect until the reason for each 

such suspension has been rectified.

¶35 IT IS FURTHER ORDERED that within 60 days of the date 

of this order, Benjamin A. Hanes shall pay to the Office of 

Lawyer Regulation the full costs of this proceeding, which are 

$7,704.67 as of March 17, 2020.

¶36 IT IS FURTHER ORDERED that, to the extent that he has 

not already done so, Benjamin A. Hanes shall comply with the 
No. 2019AP1170-D 

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provisions of SCR 22.26 concerning the duties of a person whose 

license to practice law in Wisconsin has been suspended.

¶37 IT IS FURTHER ORDERED that any future reinstatement of 

Benjamin A. Hanes' law license will be conditioned upon:

 Providing evidence and documentation to the Office of 

Lawyer Regulation, demonstrating that, at least one 

year prior to his petition for reinstatement Benjamin 

A. Hanes participated, at his own expense, in an 

alcohol and other drug abuse and mental health 

assessment by a Wisconsin Lawyers Assistance Program 

approved provider. 

 Providing evidence demonstrating that he has complied 

and remains compliant with any specific written 

recommendations for treatment or maintenance as a 

result of that assessment, including compliance with 

all monitoring requirements, if any, deemed 

appropriate by the Wisconsin Lawyers Assistance 

Program or other monitor designated by the Office of 

Lawyer Regulation, which may include the requirement 

to refrain from the consumption of alcohol and any 

mood-altering drugs without a valid prescription while 

subject to monitoring.

 Providing signed medical releases of confidentiality 

for each treatment provider who is providing or has 

provided to Benjamin A. Hanes within the last two 

years any treatment, assessment, or services related 
No. 2019AP1170-D 

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to alcohol or substance abuse, such releases to remain 

in effect for two years from the date of signature. 

 Acknowledging that any future reinstatement may be 

subject to further conditions, including monitoring.
No. 2019AP1170-D 

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