2017 WI 96

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP1350-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings 

Against Steven Cohen, Attorney at Law:

Office of Lawyer Regulation,

 Complainant-Respondent,

 v.

Steven Cohen,

 Respondent-Petitioner.

DISCIPLINARY PROCEEDINGS AGAINST COHEN

OPINION FILED: November 17, 2017

SUBMITTED ON BRIEFS: June 20, 2017 

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED:

DISSENTED:

NOT PARTICIPATING: 

ATTORNEYS:

For the respondent-petitioner, there was a brief filed by 

Steven M. Cohen and Cohen Law Office, Madison.

For the complainant-respondent there was a brief filed by 

Denis R. Vogel and Wheeler, Van Sickle & Anderson, S.C.,

Madison.
2017 WI 96

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP1350-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings 

Against Steven Cohen, Attorney at Law:

Office of Lawyer Regulation,

 Complainant-Respondent,

 v.

Steven Cohen,

 Respondent-Petitioner.

FILED

NOV 17, 2017

Diane M. Fremgen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license 

suspended. 

¶1 PER CURIAM. Attorney Steven Cohen has appealed a 

report filed by Referee James C. Boll, Jr. concluding that 

Attorney Cohen committed four counts of professional misconduct 

and recommending that Attorney Cohen's license to practice law 

in Wisconsin be suspended for four months. Attorney Cohen 

entered into a stipulation whereby he agreed that the facts 

alleged in the amended complaint filed by the Office of Lawyer 

Regulation (OLR) could be used to form a basis for his 
No. 2015AP1350-D 

2

admissions to the first three counts of misconduct alleged in 

the amended complaint. In his appeal, Attorney Cohen argues 

that the evidence was insufficient to support the referee's 

finding of misconduct with respect to count four of the amended 

complaint. He also argues that mitigating circumstances support 

a lesser sanction than the four-month suspension recommended by 

the referee.

¶2 Upon careful review of this matter, we uphold all of 

the referee's findings of fact and conclusions of law and 

conclude that a four-month suspension of Attorney Cohen's 

license to practice law is an appropriate sanction for his 

misconduct. As is our usual custom, we also find that Attorney 

Cohen should be required to pay the full costs of this 

proceeding, which are $8,608.20 as of July 10, 2017. 

¶3 Attorney Cohen was admitted to practice law in 

Wisconsin in 1996. He practices in Madison, Wisconsin. In 

2007, he received a private reprimand as the result of a 

conviction for one count of misdemeanor disorderly conduct that 

stemmed from an altercation involving Attorney Cohen and his 

wife. See Private Reprimand No. 2007-28 (electronic copy 

available at 

https://compendium.wicourts.gov/app/raw/002019.html).

¶4 On July 8, 2015, the OLR filed a complaint against 

Attorney Cohen. Attorney Cohen filed an answer on August 10, 

2015. The referee was appointed on October 15, 2015. The OLR 

filed an amended complaint on March 3, 2016. 
No. 2015AP1350-D 

3

¶5 Count one of the amended complaint arose out of an 

incident that occurred in the course of Attorney Cohen's 

representation of R.S., who is serving a life sentence for a 

homicide conviction. On October 18, 2013, Attorney Cohen 

traveled to the Columbia Correctional Institution to meet with 

R.S. Attorney Cohen carried with him a black bag containing 

pens, transcripts, and papers. He also brought a white pastry 

bag containing two crème-filled donuts and hard boiled eggs. 

Attorney Cohen informed correctional officers that he had 

brought his lunch with him.

¶6 Attorney Cohen met with R.S. for several hours. At 

some point correctional officers moved them to a different room. 

When leaving the room, R.S. threw Attorney Cohen's white pastry 

bag into a trash container. An officer searched the discarded 

bag and found a leftover donut and a toothbrush package with the 

toothbrushes removed. A subsequent search of R.S. and his 

belongings revealed two toothbrushes and a 1.5 ounce container 

of McCormick brand red pepper. The toothbrushes and pepper had 

been secreted by Attorney Cohen into the prison in a legal 

folder.

¶7 According to prison authorities, the toothbrushes were 

heavier than the ones available to inmates at the prison canteen 

and could be fashioned into shanks. The authorities also 

concluded that the crushed red pepper could be made into a 

pepper spray. 

¶8 When correctional officers interviewed Attorney Cohen 

about the items, he denied knowing anything about them. 
No. 2015AP1350-D 

4

Following additional investigation, Attorney Cohen was arrested 

for delivering contraband into the Columbia Correctional 

Institution. In February of 2014, the Columbia County district 

attorney filed a complaint charging Attorney Cohen with one 

felony count of delivering illegal articles to an inmate and one

misdemeanor count of resisting or obstructing an officer.

¶9 On November 14, 2014, Attorney Cohen pled no contest 

and was found guilty of one felony count of delivery of illegal 

articles to an inmate, one count of misdemeanor obstructing an 

officer, and one count of misdemeanor disorderly conduct. The 

circuit court withheld judgment on the felony count pursuant to 

a deferred entry of judgment agreement. It entered judgment on 

the two misdemeanor counts. The court deferred sentencing on 

those two counts and placed Attorney Cohen on probation for two 

years with conditions including counseling, costs, electronic 

monitoring, and 60 days of incarceration in the county jail with 

Huber privileges.

¶10 Count one of the OLR's amended complaint alleged:

Count One: By engaging in acts leading to a finding 

of guilt for delivery of illegal articles to an 

inmate, and, in addition, for acts leading to 

convictions for resisting or obstructing an officer 

and disorderly conduct, Attorney Cohen violated 

SCR 20:8.4(b).1

 

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."
No. 2015AP1350-D 

5

¶11 The remaining three counts of misconduct alleged in 

the amended complaint arose out of Attorney Cohen's 

representation of C.S. In October of 2012, C.S. was charged 

with criminal operating while under the influence of an 

intoxicant. C.S. hired Attorney Cohen to represent him and paid 

advanced fees totaling $2,500. Attorney Cohen deposited all of 

the funds received into his client trust account. Attorney 

Cohen did not prepare a written fee communication to C.S. 

identifying the scope of the representation, the basis or rate 

of the fee, or the purpose and effect of the $2,500 advanced 

fee.

¶12 After advancing the fees to Attorney Cohen, C.S. 

attempted to reach Attorney Cohen by telephone but was unable to 

adequately communicate and discuss the circumstances of the case 

with him. On January 7, 2013, C.S. terminated Attorney Cohen's 

representation by sending a handwritten letter asserting 

Attorney Cohen had not returned his calls or discussed his case 

with him. C.S. demanded a full refund of the advanced fee. 

¶13 On January 20, 2013, Attorney Cohen responded in 

writing to C.S.'s termination letter and forwarded his file to 

C.S. Attorney Cohen said he would discuss with C.S. a partial 

fee refund. According to Attorney Cohen, he communicated 

adequately with C.S., including sending C.S. emails. However, 

C.S. asserted that he did not have an email address and that 

Attorney Cohen's statements that he had ever emailed C.S. were 

false. During OLR's investigation, Attorney Cohen was unable to 

provide documentation demonstrating that he communicated 
No. 2015AP1350-D 

6

adequately with C.S. by telephone, email, or otherwise, or that 

he responded to C.S.'s reasonable requests for information. 

Attorney Cohen ultimately refunded $1,250 to C.S. The OLR's 

amended complaint alleged the following counts of misconduct 

with respect to Attorney Cohen's representation of C.S.:

Count Two: By charging fees over $1,000 from C.S. 

without providing a written communication of the fee 

agreement to C.S., including the scope of 

representation and the basis or rate of the fee, 

Attorney Cohen violated SCR 20:1.5(b)(1).2

Count Three: By receiving a $2,500 advanced fee from 

C.S. without explaining in a written fee agreement the 

purpose and effect of such advanced or retainer 

payment, Attorney Cohen violated SCR 20:1.5(b)(2).3

 

2 SCR 20:1.5(b)(1) provides:

The scope of the representation and the basis or 

rate of the fee and expenses for which the client will 

be responsible shall be communicated to the client in 

writing, before or within a reasonable time after 

commencing the representation, except when the lawyer 

will charge a regularly represented client on the same 

basis or rate as in the past. If it is reasonably 

foreseeable that the total cost of representation to 

the client, including attorney's fees, will be $1000 

or less, the communication may be oral or in writing. 

Any changes in the basis or rate of the fee or 

expenses shall also be communicated in writing to the 

client. 

3 SCR 20:1.5(b)(2) provides: "If the total cost of 

representation to the client, including attorney's fees, is more 

than $1000, the purpose and effect of any retainer or advance 

fee that is paid to the lawyer shall be communicated in 

writing."
No. 2015AP1350-D 

7

Count Four: By failing to promptly respond to his 

client by telephone, correspondence or otherwise, 

Attorney Cohen violated SCR 20:1.4(a)(4).4

¶14 On August 31, 2016, the OLR and Attorney Cohen entered 

into a stipulation whereby Attorney Cohen admitted counts one, 

two, and three of the complaint and agreed that the facts 

alleged in the amended complaint could be used to form a basis 

to his admissions to those counts and for the referee's 

conclusions of misconduct thereon. Attorney Cohen did not admit 

that the facts in the amended complaint were sufficient to form 

the basis for a finding of a violation of count four. Attorney 

Cohen also did not stipulate to the OLR's request for a 60-day 

suspension of his license to practice law in Wisconsin and 

reserved the right to be heard on that issue. 

¶15 At a hearing before the referee, the OLR presented 

testimony on count four of the amended complaint in the form of 

an adverse examination of Attorney Cohen and testimony from C.S. 

In the course of the hearing, the referee advised the parties 

that they could submit additional information with post trial 

briefing, particularly with respect to a disagreement that 

emerged at the hearing concerning whether the record included a 

complete set of emails allegedly sent from Attorney Cohen to 

C.S. At the close of the hearing, both parties declined the 

referee's invitation to submit post trial briefs. The referee 

then closed the hearing and advised the parties that no 

 

4 SCR 20:1.4(a)(4) provides: "A lawyer shall promptly 

comply with reasonable requests by the client for information."
No. 2015AP1350-D 

8

additional evidence would be admitted, except that Attorney 

Cohen was given the opportunity to submit additional email 

correspondence between himself and C.S. for the referee's 

consideration.

¶16 The day after the hearing, Attorney Cohen sent an 

email to the referee requesting that "some papers" that he 

claimed to have submitted around March 2016 become part of the 

hearing record. No papers were attached to Attorney Cohen's 

email. A few days later, Attorney Cohen sent a second email to 

the referee, again referring to the "papers." Attorney Cohen 

advised the referee that, "they were already part of the record, 

but do with them as you see fit . . .." No documents were 

submitted to the referee in conjunction with Attorney Cohen's 

post hearing request. The OLR advised the referee that the 

"papers" referred to by Attorney Cohen were not subject to 

examination at the evidentiary hearing. However, the OLR said 

it did not object if the referee were to look at the "papers" 

and give them the weight, if any, the referee deemed 

appropriate. 

¶17 The referee filed his report on August 31, 2016. 

Based on the parties' stipulation and the record, the referee 

found that the OLR clearly and convincingly proved that Attorney 

Cohen committed all four counts of professional misconduct 

alleged in the amended complaint.

¶18 With respect to count four of the amended complaint, 

which was the only count Attorney Cohen challenged, the referee 

noted that Attorney Cohen testified at the evidentiary hearing 
No. 2015AP1350-D 

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that he did not respond to C.S.'s telephone calls because he was 

not ready to speak with C.S. and that this was "a normal trial 

tactic." The referee also noted that Attorney Cohen testified 

another reason he did not respond to C.S. was that he urges 

clients to call him on his cell phone rather than his landline 

and C.S. called the landline. Further, Attorney Cohen indicated 

his secretary did not take messages. The referee said he did 

not find any of those explanations to be credible evidence to 

mitigate Attorney Cohen's lack of response to C.S.

¶19 The referee also noted that Attorney Cohen and C.S. 

testified to email communications. The referee said the emails 

in question appeared to have been exchanged between Attorney 

Cohen and C.S.'s new counsel, not between Attorney Cohen and 

C.S. The emails discussed Attorney Cohen returning a portion of 

the advanced fee. The referee found that those email 

communications occurred after C.S. had terminated Attorney Cohen 

as counsel and were not relevant to the allegation that Attorney 

Cohen failed to respond to his client. Further, the referee 

pointed out that C.S. was facing a potential felony conviction 

and incarceration and the need for communication with his 

attorney was a serious matter. The referee said he "does not 

find any credible evidence presented by Attorney Cohen to 

mitigate why he did not respond to [C.S.]." Accordingly, the 

referee found that all allegations in the amended complaint, 

including the allegations in support of count four, were proven 

by the OLR by the requisite burden of proof.
No. 2015AP1350-D 

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¶20 In discussing the appropriate sanction, the referee 

noted that the OLR argued for a 60-day suspension of Attorney 

Cohen's license. The referee noted that the case involves four 

counts of professional misconduct against an attorney who was 

previously privately reprimanded following a disorderly conduct 

conviction. The referee noted that the misconduct occurred in 

two separate matters, one resulting in Attorney Cohen's criminal 

conviction for providing contraband to an inmate, and the other 

involving a failure to comply with supreme court rules relating 

to fee agreements and failing to adequately communicate with his 

client.

¶21 The referee said there is not a great deal of 

precedent involving Wisconsin attorneys prosecuted for bringing 

contraband into a prison. However, the referee noted that in In 

re Disciplinary Proceedings Against Mross, 2003 WI 4, 259 

Wis. 2d 8, 657 N.W.2d 342, an attorney received a 90-day 

suspension following a conviction for passing packages of 

cigarettes to multiple inmates over an extended period of time. 

The referee concluded that Attorney Cohen's behavior was more 

egregious than the conduct in Mross because the contraband 

delivered by Attorney Cohen could have been used as a weapon. 

In addition, the referee said the fact that Attorney Cohen lied 

to the authorities who questioned him after the incident was an 

aggravating factor. 

¶22 The referee said he was troubled by the fact that 

Attorney Cohen did not present any mitigating evidence about the 

prison incident either at the evidentiary hearing or as part of 
No. 2015AP1350-D 

11

the stipulation. The referee further said that he was troubled 

by Attorney Cohen's behavior during the hearing. The referee 

said, "Attorney Cohen took no responsibility for his actions. 

He demonstrated no remorse for his actions and demonstrated 

contempt for the proceedings. Attorney Cohen did not even bring 

a file to the hearing to assist him in his representation." 

¶23 The referee agreed with the OLR's position that 

Attorney Cohen's conduct in representing C.S., standing alone, 

would not support a license suspension. However, the referee 

said he was very troubled by the fact that Attorney Cohen, an 

experienced criminal defense attorney, furnished contraband to 

an inmate, and the referee was also troubled that Attorney Cohen 

took no responsibility for his actions and presented no 

mitigating evidence during the evidentiary hearing. Based on 

all of those factors, the referee concluded that an appropriate 

sanction for Attorney Cohen's misconduct would be a four-month 

suspension of Attorney Cohen's license to practice law in 

Wisconsin. 

¶24 Attorney Cohen has appealed the referee's report. His 

brief raises two issues: (1) was the evidence of insufficient 

attorney client communication alleged in count four of the 

amended complaint clear, and were mitigating circumstances 

considered?; and (2) were there mitigating circumstances related 

to Attorney Cohen's convictions?

¶25 After the notice of appeal was filed, Attorney Cohen 

filed a motion to correct or supplement the record with

documents that he said were previously submitted to the OLR and 
No. 2015AP1350-D 

12

the referee for the purpose of supplying mitigating evidence. 

Attorney Cohen's motion said he mistakenly believed the 

documents were made part of the record but after the hearing 

discovered they were not in fact in the record. The OLR filed a 

response saying it did not object to the documents being added 

to the record but that this court should "give such records only

the limited (or no) weight to which they would be 

entitled, . . .." Many of the documents relate to Attorney 

Cohen's stormy relationship with his former wife. This court 

granted Attorney Cohen's motion to supplement the record on 

November 14, 2016. 

¶26 Attorney Cohen argues that there was insufficient 

evidence to support the referee's findings of fact and 

conclusions of law with respect to count four of the amended 

complaint. He further accuses the referee of failing to 

consider mitigating circumstances. Attorney Cohen argues that 

C.S. was able to contact him approximately half of the times he 

attempted to do so. Attorney Cohen says, "there was not a 

pattern of the client making a large number of calls that were 

cavalierly ignored over time. The representation was short, and 

some contacts were made." 

¶27 Attorney Cohen also argues that the referee failed to 

consider mitigating circumstances relating to Attorney Cohen's 

convictions for bringing contraband into the prison. He says 

his client wrote him a letter asking that Attorney Cohen bring a 

toothbrush and some food seasoning to the prison, and the only 

motive behind delivering those items was "from concern for the 
No. 2015AP1350-D 

13

care of the inmate, and desire to serve." Attorney Cohen says 

he had been trying to do as much charitable work as possible at

that time to help him "cope with his awful divorce, . . .." 

Attorney Cohen says he has expressed a sincere and deep regret 

for his actions, and that he has already suffered long lasting 

and damaging consequences which include loss of trust, public 

embarrassment, loss of clients, damage to personal reputation, 

and monetary loss. Attorney Cohen says he will never make these 

same mistakes again. 

¶28 The OLR argues that the referee's findings of fact 

regarding count four of the amended complaint are not clearly 

erroneous, and the referee's conclusion of law with respect to 

that count is supported by the record. The OLR says the referee 

was correct that Attorney Cohen offered no good reason for 

failing to return calls from C.S. The OLR notes that while 

there was considerable discussion about purported email 

communications between Attorney Cohen and C.S., C.S. confirmed 

at the evidentiary hearing that he did not have an email address 

and did not know how to use email and that the evidence 

presented at the hearing demonstrated that the only emails that 

Attorney Cohen sent with respect to C.S.'s case were between 

Attorney Cohen and C.S.'s new counsel after C.S. had fired 

Attorney Cohen.

¶29 The OLR says that it is reasonable for any client to 

assume that a reasonable request for information will generate a 

response from the attorney and Attorney Cohen failed to properly 

respond to C.S. The OLR says while Attorney Cohen gave multiple 
No. 2015AP1350-D 

14

excuses why he did not timely respond to C.S.'s calls to him, 

the credibility of those various explanations was up to the 

trier of fact to weigh and the referee specifically said he did 

not find Attorney Cohen's explanations to be credible evidence 

to mitigate the lack of response to his client. The OLR says 

that none of the referee's findings of fact concerning Attorney 

Cohen's representation of C.S. are clearly erroneous. 

¶30 As to the appropriate level of discipline, the OLR 

notes that it sought a 60-day license suspension and the referee 

recommended a four-month suspension. The OLR notes that this 

court is not bound by either recommendation and is the final 

arbiter of attorney discipline in Wisconsin.

¶31 The OLR argues that the supplemental documents 

submitted by Attorney Cohen after the notice of appeal was filed 

do not support mitigation to the extent Attorney Cohen might 

wish. The OLR notes that Attorney Cohen's supplemental 

submission references at length his marital difficulties. The 

OLR says while it is sympathetic to anyone experiencing stress 

or troubles, this does not explain or excuse Attorney Cohen's 

criminal actions nor does it justify his laxness toward C.S., 

who had serious criminal difficulties himself and was facing 

prison time. 

¶32 A referee's findings of fact are affirmed unless 

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 
No. 2015AP1350-D 

15

recommendation. See In re Disciplinary Proceedings Against 

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

¶33 After careful review of the matter, we conclude that 

there has been no showing that any of the referee's findings of 

fact are clearly erroneous. Accordingly, we adopt them. We 

further agree with the referee's conclusions of law that 

Attorney Cohen violated all of the supreme court rules set forth 

above.

¶34 With respect to the appropriate level of discipline, 

we also agree with the referee that a four-month suspension of 

Attorney Cohen's license to practice law in Wisconsin is an 

appropriate sanction. We share the referee's concern that 

Attorney Cohen's bringing contraband into a prison, which led to 

one felony and two misdemeanor convictions, is a very serious 

offense that reflects adversely on an attorney's honesty, 

trustworthiness, or fitness as a lawyer in other respects. 

¶35 We also agree with the referee that Attorney Cohen's 

behavior is more egregious than Attorney Mross' furnishing 

inmates with cigarettes because the contraband delivered to the 

inmate by Attorney Cohen could have been used as a weapon. In 

addition, we note that Attorney Mross had no disciplinary 

history and there were no other counts of misconduct involved. 

By contrast, Attorney Cohen was previously reprimanded for a 

misdemeanor disorderly conduct conviction, and in addition to 

the criminal conviction this case also involves three additional 

counts of misconduct with respect to Attorney Cohen's 

representation of C.S. 
No. 2015AP1350-D 

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¶36 Further, we concur with the referee's conclusion that 

Attorney Cohen failed to present any mitigating evidence at the 

evidentiary hearing, and we agree with the OLR that the 

documents with which we allowed Attorney Cohen to supplement the 

record to a large extent simply detail Attorney Cohen's marital 

difficulties. As the OLR noted, while one may be sympathetic to 

anyone experiencing domestic problems, there is nothing in 

Attorney Cohen's supplemental document submission that would 

mitigate the seriousness of the offenses at issue here. 

Accordingly, we agree with the referee that a four-month 

suspension of Attorney Cohen's license is appropriate. We also 

find it appropriate for Attorney Cohen to pay the full costs of 

the proceeding. Attorney Cohen made a partial refund to C.S. 

At the hearing, C.S. did not seek additional restitution, and we 

do not order it.

¶37 IT IS ORDERED that the license of Steven Cohen to 

practice law in Wisconsin is suspended for a period of four 

months effective December 29, 2017.

¶38 IT IS FURTHER ORDERED that Steven Cohen comply with 

the provisions of SCR 22.26 concerning the duties of a person 

whose license to practice law in Wisconsin has been suspended. 

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

of this order, Steven Cohen pay to the Office of Lawyer 

Regulation the costs of this proceeding, which are $8,608.20. 

If the costs are not paid within the time specified, and absent 

a showing to this court of his inability to pay the costs within 

that time, the license of Steven Cohen to practice law in 
No. 2015AP1350-D 

17

Wisconsin shall remain suspended until further order of the 

court.

¶40 IT IS FURTHER ORDERED that compliance with all 

conditions of this order is required for reinstatement. See

SCR 22.28(2). 
No. 2015AP1350-D 

1