2023 WI 76

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP2166-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings

Against Matthew T. Luening, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Matthew T. Luening,

 Respondent.

DISCIPLINARY PROCEEDINGS AGAINST LUENING

OPINION FILED: December 15, 2023 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: 

SOURCE OF APPEAL:

COURT: 

COUNTY: 

JUDGE: 

JUSTICES:

Per curiam. 

ATTORNEYS:
2023 WI 76

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP2166-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings 

Against Matthew T. Luening, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Matthew T. Luening,

 Respondent.

FILED

DEC 15, 2023

Samuel A. Christensen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license 

suspended. 

¶1 PER CURIAM. This matter returns to the court 

following remand to Referee James J. Winiarski. 

¶2 Attorney Matthew Luening was admitted to practice law 

in Wisconsin in 2010 and practices in Milwaukee. His 

disciplinary history consists of two consensual public 
No. 2020AP2166-D 

2

reprimands. Public Reprimand of Matthew T. Luening, No. 2017-3;1

Public Reprimand of Matthew T. Luening, No. 2017-10.2

¶3 On December 29, 2020, the Office of Lawyer Regulation 

(OLR) filed a complaint against Attorney Luening, alleging 

twelve counts of misconduct. Seven of those counts arose out of 

Attorney Luening's practice before an immigration tribunal. 

Attorney Winiarski was appointed referee. During the pendency 

of the case, the referee granted summary judgment in favor of 

OLR on one count of misconduct, and OLR dismissed one count. 

Following an evidentiary hearing, the referee issued a report 

finding that OLR met its burden of proof with respect to six of 

the counts of misconduct alleged in the complaint, including 

three of the immigration-based counts. The referee recommended 

a six-month suspension of Attorney Luening's license to practice 

law.

¶4 Attorney Luening appealed, arguing that a six-month 

suspension was excessive. The OLR cross-appealed, arguing that 

the referee erred in finding that OLR failed to meet its burden 

of proof on one of the alleged counts of misconduct and that a 

six- month suspension was inadequate.

¶5 In advance of oral argument, the court learned that on 

the same day it filed the complaint against Attorney Luening, 

 

1 Electronic copy available at 

https://compendium.wicourts.gov/app/6a7e2925573043408b558b4b0a75

2f7f6b1d1933.continue?action=detail&detailOffset=1. 

2 Electronic copy available at 

https://compendium.wicourts.gov/app/6a7e2925573043408b558b4b0a75

2f7f6b1d1933.continue?action=detail&detailOffset=0. 
No. 2020AP2166-D 

3

OLR filed a complaint in another case involving an attorney's 

immigration practice. The complaint filed in the other case 

cited both the Wisconsin Rules of Professional Conduct alleged 

to have been violated as well as the rules promulgated by the 

Executive Office of Immigration Review (EOIR), as set forth in 8 

C.F.R. § 1003.102.

¶6 On February 24, 2023, we ordered the first seven 

counts alleged in the complaint in this proceeding, all of which 

arose out of Attorney Luening's representation of clients before 

an immigration tribunal, dismissed because those counts should 

have been pleaded under the rules promulgated by EOIR rather 

than under Wisconsin's Rules of Professional Conduct. We 

remanded the matter to the referee for a recommendation on the 

appropriate sanction for the remaining non-immigration related 

counts of misconduct found by the referee. See In re 

Disciplinary Proceedings Against Luening, 2023 WI 12, 406 Wis. 

2d 1, 985 N.W.2d 773. (Luening I). 

¶7 On remand, the referee asked the parties to file 

briefs on the sanction issue. Both parties advocated for a 

suspension not to exceed 60 days. On May 10, 2023, the referee 

issued a Report Following Remand in which he concluded that a 

60-day suspension of Attorney Luening's license to practice law 

in Wisconsin would be an appropriate sanction for the remaining 

counts of misconduct. The referee also recommended that 

Attorney Luening should be responsible for 25% of the costs in 

this case, which would be $8,639.22. 
No. 2020AP2166-D 

4

¶8 Since no appeal was filed from the Referee's Report 

Following Remand, we review the report pursuant to Supreme Court 

Rule (SCR) 22.17(2).3 After careful review of the matter, and 

noting the unique circumstances of this case, we agree that 

Attorney Luening's non-immigration related misconduct warrants a 

60-day suspension. We also agree that Attorney Luening should 

be assessed 25% of the costs of this proceeding. 

¶9 Three of the non-immigration based counts of 

misconduct alleged in OLR's complaint arose out of Attorney 

Luening's representation of L.S. L.S. is from Kenya but has 

spent considerable time in the Milwaukee area. In 2013, L.S. was 

living in the Milwaukee area with her husband. She had 

previously used Attorney Luening's legal services in efforts to 

secure a green card for her son. As a result of that 

representation, Attorney Luening and L.S. became close friends. 

¶10 L.S. and her husband returned to Kenya in 2013. 

L.S.'s husband was in the military. He passed away while the 

couple was in Kenya, and L.S. applied for military benefits as a 

result of his death. When L.S. ran into problems securing the 

benefits, she asked Attorney Luening, who was in Milwaukee, for 

help. Attorney Luening and L.S. communicated via Skype, email, 

and written correspondence. Attorney Luening agreed to help 

 

3 SCR 22.17(2) provides: "If no appeal is filed timely, the 

supreme court shall review the referee's report; adopt, reject 

or modify the referee's findings and conclusions or remand the 

matter to the referee for additional findings; and determine and 

impose appropriate discipline. The court, on its own motion, 

may order the parties to file briefs in the matter."
No. 2020AP2166-D 

5

L.S. obtain the military benefits. There was no discussion of 

legal fees and no written fee contract. Attorney Luening said 

he had no intention of charging his friend for his help.

¶11 In order to secure the military death benefits, L.S. 

executed a Wisconsin General Durable Power of Attorney on 

October 25, 2016 while she was in Kenya. The power of attorney 

was a general grant of many powers to the named agent, Attorney 

Luening, and it gave Attorney Luening powers over L.S.'s banking 

and other financial transactions. The power of attorney also 

included powers to resolve the military benefits issue. 

¶12 In his communications with authorities while 

attempting to secure military benefits for L.S., Attorney 

Luening referred to L.S. as his client.

¶13 In March 2018, Attorney Luening received notice that 

L.S. would receive the death benefits. In a March 18, 2018 

letter to L.S., Attorney Luening said he was happy they were 

able to deal successfully with the military. He also said, "My 

representation as your attorney is now ended, as I see it." 

¶14 In April 2018, L.S. sent Attorney Luening a check for 

$3,000 accompanied by a note in which L.S. said the money was to 

thank Attorney Luening for helping her with the military 

benefits issue. Attorney Luening sent L.S. a handwritten letter 

that month in which he discussed his financial problems. In a 

May 4, 2018 letter to Attorney Luening, L.S. said:

I received your mssge (sic) and note Babe. I can help 

you. I can lend you $25,000 if you need it. You can 

deposit payments when I come over.
No. 2020AP2166-D 

6

¶15 No further communication occurred between L.S. and 

Attorney Luening about a loan agreement or about the terms of a 

loan such as the type of disbursement that would be made or the 

repayment of interest. 

¶16 In June 2018, using the power of attorney L.S. had 

signed, Attorney Luening began making electronic withdrawals 

from L.S.'s checking account and transferring the funds to his 

bank account for his own personal use. He did not provide L.S. 

notice of the electronic withdrawals.

¶17 Between June 28, 2018 and January 2, 2019, Attorney 

Luening stated that he made thirteen withdrawals totaling 

$23,600. L.S. said the number and total amounts of the 

withdrawals was greater. 

¶18 L.S. returned to Milwaukee from Kenya in February 

2019. Between January 28, 2019 and February 8, 2019, Attorney 

Luening withdrew an additional $7,200 from L.S.'s checking 

account to cover the expense of her hotels, food, security 

deposit at her Milwaukee apartment, cell phone, and for expenses 

Attorney Luening and his staff incurred taking L.S. shopping, 

looking for apartments, taking her to visit friends in town, and 

making trips back and forth to his office. L.S. knew and 

approved of those withdrawals.

¶19 On or about February 22, 2019, L.S. paid Attorney 

Luening $10,000 in attorney's fees for his representation in the 

military benefits matter. Attorney Luening did not provide L.S. 

with any billing statements for his work in representing her in 

that matter.
No. 2020AP2166-D 

7

¶20 Beginning in June 2019, Attorney Luening began making 

payments, via electronic deposits and cashier's checks, to L.S. 

as repayment for the purported loan. As of March 10, 2020, 

Attorney Luening had repaid L.S. $33,000. Attorney Luening 

considered the purported loan amount to be $23,600 and interest 

to be $9,400.

¶21 The OLR's complaint alleged the following counts of 

misconduct with respect to Attorney Luening's dealings with 

L.S.:

Count 8: By failing to communicate to [L.S.] in 

writing the scope of his representation or the basis 

or rate of his fee or expenses for which [L.S.] would 

be responsible, [Attorney] Luening violated SCR 

20:1.5(b)(1).4

Count 9: Having formerly represented [L.S.], by using 

his knowledge of [L.S.]'s funds in the . . . checking 

account to the disadvantage of [L.S.], [Attorney] 

Luening violated SCR 20:1.9(c)(1).5

 

4 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."

5 SCR 20:1.9(c)(1) provides: "A lawyer who has formerly 

represented a client in a matter or whose present or former firm 

has formerly represented a client in a matter shall not 

thereafter use information relating to the representation to the 

disadvantage of the former client except as these rules would 

permit or require with respect to a client, or when the 

information has become generally known."
No. 2020AP2166-D 

8

Count 10: By misappropriating [L.S.]'s funds for his 

own personal use, [Attorney] Luening violated SCR 

20:8.4(c).6

¶22 The last two non-immigration related counts alleged in 

OLR's complaint arose out of Attorney Luening's practicing law 

while his license was suspended. 

¶23 On April 5, 2019, the Wisconsin Board of Bar Examiners 

(BBE) sent a Notice of Noncompliance to Attorney Luening 

advising him that he had until June 4, 2019 to complete his 

2017-2018 mandatory continuing legal education (CLE) 

requirements and informing him that if he did not become 

compliant, his law license would be automatically suspended on 

June 5, 2019. The notice also stated that the CLE report and 

any unpaid late fee must be received no later than June 4, 2019 

in order for him to remain eligible to practice law in 

Wisconsin. 

¶24 Attorney Luening acknowledged that he received notice 

prior to June 5, 2019. Although he timely obtained the 

necessary CLE credits and filed a CLE report showing compliance, 

he failed to pay the late fee by June 4, 2019.

¶25 On June 5, 2019, BBE suspended Attorney Luening's 

Wisconsin law license for noncompliance with the 2017-2018 

mandatory CLE requirements because the late fee had not been 

paid. The BBE sent a memorandum to the clerk of this court and 

all judges of courts of record in Wisconsin listing the 

 

6 SCR 20:8.4(c) provides: "It is professional misconduct 

for a lawyer to engage in conduct involving dishonesty, fraud, 

deceit or misrepresentation."
No. 2020AP2166-D 

9

attorneys who were suspended as of that date for failure to 

comply with CLE requirements. Attorney Luening's name was on 

the list. The BBE also mailed Attorney Luening a notice on that 

date informing him that his law license had been suspended. 

¶26 Due to the suspension of his Wisconsin law license, 

Attorney Luening was not eligible to practice in any United 

States immigration court, per 8 C.F.R. § 1292.1. Attorney 

Luening continued to practice law and represent clients on June 

5, 6, and 7, primarily in criminal and immigration matters, 

including appearing in court and by phone, as well as filing 

motions. He did not inform any of the courts presiding over 

those matters of his suspension. 

¶27 When Attorney Luening learned that he had failed to 

pay the late fee, he stopped practicing law and took immediate 

action to remedy the situation. On June 10, 2019, Attorney 

Luening filed a petition for reinstatement with BBE in which he 

reported compliance with the 2017-2018 mandatory CLE 

requirements, identified the instances in which he had practiced 

law during the period of suspension, and verified that he had 

paid the $200 reinstatement fee.

¶28 On June 10, 2019, Attorney Luening's license to 

practice law was reinstated.

¶29 The OLR's complaint alleged the following counts of 

misconduct with respect to Attorney Luening's practice of law 

while suspended:

Count 11: By appearing on behalf of clients and 

filing motions on behalf of clients in circuit court 
No. 2020AP2166-D 

10

while subject to a CLE suspension, [Attorney] Luening 

violated SCR 31.10(1)7 and SCR 22.26(2)8, enforceable 

via SCR 20:8.4(f).9

Count 12: By appearing on behalf of clients in 

immigration court while he was not eligible to 

practice law in immigration court, [Attorney] Luening 

violated SCR 20:5.5(a)(1).10

 

7 SCR 31.10(1) provides: "If a lawyer fails to comply with 

the attendance requirement of SCR 31.02, fails to comply with 

the reporting requirement of SCR 31.03(1), or fails to pay the 

late fee under SCR 31.03(2), the board shall serve a notice of 

noncompliance on the lawyer. This notice shall advise the lawyer 

that the lawyer’s state bar membership shall be automatically 

suspended for failing to file evidence of compliance or to pay 

the late fee within 60 days after service of the notice. The 

board shall certify the names of all lawyers so suspended under 

this rule to the clerk of the supreme court, all supreme court 

justices, all court of appeals and circuit court judges, all 

circuit court commissioners appointed under SCR 75.02(1) in this 

state, all circuit court clerks, all juvenile court clerks, all 

registers in probate, the executive director of the state bar of 

Wisconsin, the Wisconsin State Public Defender’s Office, and the 

clerks of the federal district courts in Wisconsin. A lawyer 

shall not engage in the practice of law in Wisconsin while his 

or her state bar membership is suspended under this rule."

8 SCR 22.26(2) provides: "An attorney whose license to 

practice law is suspended or revoked or who is suspended from 

the practice of law may not engage in this state in the practice 

of law or in any law work activity customarily done by law 

students, law clerks, or other paralegal personnel, except that 

the attorney may engage in law related work in this state for a 

commercial employer itself not engaged in the practice of law."

9 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."

10 SCR 5.5(a)(1) provides: "A lawyer shall not practice law 

in a jurisdiction where doing so violates the regulation of the 

legal profession in that jurisdiction except that a lawyer 

admitted to practice in Wisconsin does not violate this rule by 

conduct in another jurisdiction that is permitted in Wisconsin 

under SCR 20:5.5 (c) and (d) for lawyers not admitted in 

Wisconsin."
No. 2020AP2166-D 

11

¶30 OLR dismissed Count 12 during the pendency of this 

action.

¶31 In his Report Following Remand, the referee found that 

OLR had met its burden of proof as to Counts 8, 10, and 11 of 

the complaint.

¶32 With respect to the counts relating to L.S., the 

referee noted that Attorney Luening was successful in securing 

military benefits for L.S. The referee also noted that in the 

letter Attorney Luening wrote to L.S. confirming that successful 

outcome, Attorney Luening made no request for any legal fees. 

The referee said, "Much later, and upon her return from Kenya to 

Milwaukee in 2019, [L.S.] voluntarily gave [Attorney] Luening a 

$10,000 payment. There was no bill issued by [Attorney] Luening 

in relation to the $10,000 payment and it apparently was an 

amount [L.S.] came up with on her own to show her appreciation 

for [Attorney] Luening's services." The referee went on to say:

Count 8 of the complaint alleges that [Attorney] 

Luening failed to communicate to [L.S.] in writing the 

scope of his representation or the basis or the rate 

for his fee. Despite the fact that [Attorney] Luening 

never had any intention of charging his friend for his 

legal services, [Attorney] Luening was a lawyer and 

did perform legal services for [L.S.] without any 

discussion or written agreement in relation to the 

cost of his legal services. There should have been 

some discussion or writing between [Attorney] Luening 

and [L.S.] in relation to the cost of such legal 

services. If [Attorney] Luening did not intend to 

charge her anything for his legal services, that 

should have been conveyed to [L.S.] at the beginning 

of the representation. While I find [Attorney] 

Luening's gratuitous thinking in relation to his close 

friend, [L.S.], to be a friendship gesture, as a 

lawyer, he was still required to convey intended 
No. 2020AP2166-D 

12

charges or lack thereof to [L.S.] His failure to do 

so is a violation of SCR 20:1.5(b)(1). His gratuitous 

and friendship goals are more of a mitigating factor 

to be considered by me in recommending appropriate 

discipline for this violation of the rules.

¶33 In finding that OLR failed to meet its burden of proof 

with respect to Count 9 of the complaint, the referee said that 

the evidence showed that L.S. "knew perfectly well that the 

power of attorney allowed [Attorney] Luening access to her 

[bank] account and she benefitted from his continuing access to 

her accounts." The referee said L.S. testified at the 

evidentiary hearing that she thought the proceeds from the 

military benefits claim were being deposited into her bank 

accounts; she thought additional benefits were due her; the 

power of attorney she gave to Attorney Luening was not only to 

obtain the military benefits but also to have him help her with 

the military benefits after they were deposited into her 

accounts; and she never revoked the power of attorney. The 

referee also noted that L.S. testified that she never arranged 

for her bank statements to be forwarded to her in Kenya; she 

knew the statements were being sent to her old address in 

Milwaukee; and she had no way to access her bank account other 

than through Attorney Luening. 

¶34 The referee rejected OLR's claim that Attorney Luening 

used his knowledge of L.S.'s bank accounts as a result of 

"formerly" representing her in obtaining the military benefits. 

Rather, the referee said:

The representation of [L.S.] by [Attorney] Luening and 

the use of the power of attorney was continuous at 
No. 2020AP2166-D 

13

[L.S.]'s directions to [Attorney] Luening. [L.S.] 

knew that [Attorney] Luening continued to have the 

power of attorney and she made use of the power by 

directing [Attorney] Luening to conduct certain 

transactions with the [bank] accounts. [L.S.] knew 

she had given [Attorney] Luening the general durable 

power of attorney and that it remained in effect even 

after some of the military benefits had been received 

as a result of [Attorney] Luening's 

efforts. . . . [L.S.] benefitted from and directed 

further use of the power of attorney by [Attorney] 

Luening.

¶35 The referee found that the evidence showed a close 

personal relationship between L.S. and Attorney Luening while 

she was residing in Kenya, with considerable communications of a 

personal nature. The referee said after Attorney Luening 

indicated he was experiencing financial problems, L.S. 

responded, "I can help you. I can lend you $25,000 if you need 

it. You can deposit payments when I come over." The referee 

found Attorney Luening's testimony that he believed L.S. was 

offering him a loan up to $25,000 that he could repay when she 

returned to Milwaukee a plausible interpretation of L.S.'s 

statement to him. By contrast, the referee said the language of 

the communication did not support L.S.'s claim that she meant 

she would consider making a loan to Attorney Luening when she 

returned to Milwaukee. The referee said although L.S. claimed 

she did not have any money to make the loan when she sent her 

communication to Attorney Luening, "She knew the military death 

benefits were going into her [bank] accounts" and "she knew 

perfectly well that she had given [Attorney Luening] a power of 

attorney that gave him access to the . . . accounts." The 

referee also said, "While there is some nominal disputes as to 
No. 2020AP2166-D 

14

the exact amounts removed by [Attorney] Luening from [L.S.]'s 

accounts, all of the money removed has been returned by 

[Attorney] Luening to [L.S.] and OLR does not claim . . . any 

additional amount is still owed by [Attorney] Luening in 

relation to the loans." 

¶36 The referee found that OLR met its burden of proof 

with respect to Count 10 of the complaint, and he found that 

Attorney Luening did violate SCR 20:8.4(c) by removing money 

from L.S.'s accounts. However, the referee rejected OLR's

contention that Attorney Luening planned to use L.S.'s power of 

attorney to "misappropriate" her funds. The referee said:

[Attorney] Luening did not make gifts to himself using 

the power of attorney. He made loan payments to 

himself which he believed [L.S.] had offered to him. 

There is no evidence that [Attorney] Luening ever 

suggested the loan amounts were gifts. . . .

[L.S.] was a nurse and thus highly educated. . . . 

While I have found [Attorney] Luening, as a lawyer, 

should have further clarified the loan offer from a 

client, [L.S.] needs to take responsibility for the 

language she used. Also, her claim that she did not 

realize [Attorney] Luening had the ability to transfer 

money from her account lacks credibility, given that 

she was the one who actually gave such power to him in 

the power of attorney she prepared and signed.

¶37 Finally, with respect to Attorney Luening's practicing 

law while suspended, the referee noted that he had previously 

granted OLR's motion for summary judgment on Count 11, and the 

referee described Attorney Luening's failure to pay the late 

fees to BBE "an oversight . . . and not a deliberate act of 

defiance." 
No. 2020AP2166-D 

15

¶38 Turning to the appropriate level of discipline for the 

three counts of misconduct, the referee noted that courts should 

consider: (1) the duty violated; (2) the lawyer's mental state; 

(3) the potential or actual injury caused by the lawyer's 

conduct; and (4) the existence of aggravating or mitigating 

factors. In re Disciplinary Proceedings Against Grogan, 2011 WI 

7, ¶15 n.9, 331 Wis. 2d 341, 795 N.W.2d 745 (recognizing the ABA 

Standards for Imposing Lawyer Sanctions, as amended in 1992, as 

a guidepost).

¶39 The referee noted that Attorney Luening's two public 

reprimands did not adequately demonstrate to Attorney Luening 

the need to scrupulously comply with Supreme Court Rules. The 

referee also noted that this court has recognized the need for 

progressive discipline in attorney disciplinary cases. In re 

Disciplinary Proceedings Against Nussberger, 2006 WI 111, ¶27, 

296 Wis. 2d 47, 719 N.W.2d 501. 

¶40 With respect to the two counts involving L.S., the 

referee said Attorney Luening believed L.S. was offering him a 

loan of up to $25,000, and although he should have clarified and 

documented the loan offer, Attorney Luening did not outright 

steal L.S.'s money. The referee said:

[Attorney Luening] was fully aware that [L.S.] would 

learn of the loans upon her return to Milwaukee. 

Also, he actually arranged for bank statements to be 

sent to her upon her return to Milwaukee. He did not 

try to hide the loan amounts he received. He repaid 

the loans and he claims with interest. While the 

evidence in regard to the repayments of the loans was 

not clear, OLR does not argue in its post-hearing 

briefs that any amount remains due. Nonetheless, 
No. 2020AP2166-D 

16

[Attorney] Luening should have known that he needed to 

confirm [L.S.]'s willingness to make the loan and he 

should have kept her inform[ed] of the amounts he was 

taking from her account. In essence, both [L.S.] and 

[Attorney] Luening were sloppy in how both of them 

approached the loan. However, [Attorney] Luening was 

the professional attorney who should have realized the 

need to further document the situation.

¶41 The referee went on to say:

While I have found that [Attorney] Luening should have 

had a fee agreement or at least something in writing 

when he began helping [L.S.] obtain the military 

benefits due her as a result of her husband's death, 

it is clear from the evidence that [Attorney] Luening 

did not intend to charge her anything for his legal 

services. While OLR suggests in their briefs some 

sort of evil motive and intent to ultimately charge 

[L.S.] for the services, I did not find anything of 

the sort in the evidence. . . . I do not see this as a 

classic case where a lawyer simply did not provide a 

fee contract to a client. . . . There certainly are 

mitigating circumstances to be taken into account in 

both the fee contract and loan counts.

¶42 The referee concluded that a 60-day suspension was an 

appropriate sanction for Attorney Luening's misconduct. 

¶43 As to the assessment of costs, the referee noted that 

this court's general policy is to impose all costs upon a 

finding of misconduct. SCR 22.24(1m). The referee noted that 

OLR's complaint alleged twelve counts of misconduct, while the 

referee was tasked with recommending an appropriate sanction for 

only three of those counts. The referee noted that SCR 

22.24(1m) sets forth the factors to be considered in assessing 

costs. The referee said:

I believe the two most important factors in relation 

to the assessment of costs in this case are that 

[Attorney] Luening has previously received two public 

reprimands, each involving multiple violations. 
No. 2020AP2166-D 

17

However, I cannot ignore the fact that the respondent 

has only been found responsible on three of twelve 

counts. Seven of the original 12 counts were 

improperly charged. While mathematical equality is 

not always required, I believe the respondent should 

be responsible for 25% of the costs in this case.

¶44 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 recommendations. See In re Disciplinary 

Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 

N.W.2d 686.

¶45 We adopt the referee's findings of fact and 

conclusions of law and find that Attorney Luening violated the 

Supreme Court Rules as alleged in Counts 8, 10, and 11 of the 

complaint. After careful consideration, we also agree with the 

referee that a 60-day suspension of Attorney Luening's license 

to practice law in Wisconsin is an appropriate sanction for his 

misconduct, and we agree with the referee's recommendation on 

the imposition of costs. 

¶46 We frequently say that since no two disciplinary 

cases are precisely the same, there is no standard sanction for 

any particular misconduct. We find, however, that the counts of 

misconduct found by the referee in this case are somewhat 

similar to the misconduct at issue in In re Disciplinary 

Proceedings Against Toran, 2018 WI 26, 380 Wis. 2d 531, 909 
No. 2020AP2166-D 

18

N.W.2d 411 and In re Disciplinary Proceedings Against Bartz,

2015 WI 61, 362 Wis. 2d 752, 864 N.W.2d 881. 

¶47 In Bartz, we imposed a 60-day suspension for five 

counts of professional misconduct that included a violation of 

SCR 20:8.4(c) that was more egregious than the violation that 

occurred in the instant case since Attorney Bartz, after 

settling a personal injury claim, disbursed monies held in trust 

to himself, leaving no funds in trust attributable to his client 

or the client's medical provider. Attorney Bartz's disciplinary 

history consisted of a consensual private reprimand. In Toran, 

we imposed a 60-day suspension for three counts of misconduct 

that included failing to enter into a written fee agreement with 

a client and failing to return an advanced payment of fees when 

the attorney did not complete the work for which he was 

retained. Attorney Toran's disciplinary history consisted of 

two consensual public reprimands, a consensual private 

reprimand, and a six-month suspension. 

¶48 Here, the referee found Attorney Luening's failure to 

pay the late fee associated with his lack of timely compliance 

with mandatory CLE requirements to be an oversight. Although 

Attorney Luening practiced law for several days after his law 

license was suspended, as soon as he learned he had not paid the 

late fee, he ceased practicing law and took immediate steps to 

correct his error. Although his practice of law during those 

few days is a violation of the rules of professional misconduct, 

standing alone it would not warrant a license suspension.
No. 2020AP2166-D 

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¶49 Attorney Luening's misconduct related to L.S. is 

obviously more serious. Even if Attorney Luening did not intend 

to charge his friend for assisting her in obtaining military 

benefits following the death of her husband, as an attorney he 

had the obligation to clearly communicate with L.S. regarding 

the issue of fees. The fact that Attorney Luening was 

successful in obtaining an award of the military benefits does 

not relieve him of his responsibilities under SCR 20:1.5(b)(1). 

¶50 Attorney Luening's transfer of funds from L.S.'s bank 

account after she told him, "I can lend you $25,000 if you need 

it," is his most serious transgression. As the referee noted, 

Attorney Luening was serving as L.S.'s agent under the power of 

attorney and was acting as a fiduciary for her. As an attorney, 

he should have recognized the need to clarify the terms of the 

loan offer he believed she had made. It is significant, 

however, that the referee, who was in the best position to 

judge witness credibility, found Attorney Luening's testimony

about the loan to be credible, and he found parts of L.S.'s 

testimony about the loan to be less than credible. We agree 

with the referee that while both L.S. and Attorney Luening were 

sloppy in how they approached the loan, as both an attorney and 

as L.S.'s fiduciary, Attorney Luening bore the responsibility of 

clarifying and documenting the terms of the loan before 

transferring any funds from L.S.'s account to his own. 

¶51 The referee is correct that we generally adhere to the 

concept of progressive discipline. This is Attorney Luening's 

third disciplinary proceeding. The referee is also correct that 
No. 2020AP2166-D 

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Attorney Luening's two previous public reprimands apparently did 

not impress upon him the need to strictly adhere to the rules of 

professional conduct. We concur with the referee's conclusion 

that a 60-day suspension of Attorney Luening's law license is an 

appropriate sanction.

¶52 We turn now to the issue of costs. The referee 

recommends that Attorney Luening be responsible for 25% of the 

costs. As the referee noted, upon a finding of misconduct, our 

general policy is to impose all costs of the proceeding upon the 

respondent. See SCR 22.24(1m). In appropriate cases, the court 

may, in the exercise of its discretion, reduce the amount of 

costs. In exercising its discretion regarding the assessment of 

costs, the court considers the statement of costs, any objection 

and reply, the recommendation of the referee, and (a) the number 

of counts charged, contested, and proven; (b) the nature of the 

misconduct; (c) the level of discipline sought by the parties 

and recommended by the referee; (d) the respondent's cooperation 

with the disciplinary process; (e) prior discipline, if any; and 

(f) other relevant circumstances. Id. 

¶53 The pre-appellate costs of this proceeding, prior to 

October 24, 2022 when this court asked the parties to advise 

whether SCR 20:8.5(b)11 required that the counts of misconduct 

 

11 SCR 20:8.5(b) provides: "Choice of law. In the exercise 

of the disciplinary authority of this state, the Rules of 

Professional Conduct to be applied shall be as follows: 

(1) for conduct in connection with a matter pending before 

a tribunal, the rules of the jurisdiction in which the tribunal 

sits, unless the rules of the tribunal provide otherwise; and 
No. 2020AP2166-D 

21

arising out of Attorney Luening's representation of clients 

before an immigration tribunal should have been pleaded under 

EOIR rules, are $34,556.88. In addition, OLR's appellate 

counsel fees are $4,207.00. Twelve counts of misconduct were 

charged in OLR's complaint. Three were proven. In their postremand briefs, the parties agreed that a suspension not 

exceeding 60 days would be appropriate, and the referee agreed 

with their assessment. As noted, this is Attorney Luening's 

third disciplinary proceeding. 

¶54 Recognizing that its charging decisions resulted in 

substantial additional costs——as well as the dismissal of seven 

out of the originally pleaded twelve counts of misconduct——OLR 

 

(2) for any other conduct, 

(i) if the lawyer is admitted to the bar of only this 

state, the rules to be applied shall be the rules of this 

state. 

(ii) if the lawyer is admitted to the bars of this 

state and another jurisdiction, the rules to be applied 

shall be the rules of the admitting jurisdiction in which 

the lawyer principally practices, except that if particular 

conduct clearly has its predominant effect in another 

jurisdiction in which the lawyer is admitted to the bar, 

the rules of that jurisdiction shall be applied to that 

conduct. 

(iii) if the lawyer is admitted to the bar in another 

jurisdiction and is providing legal services in this state 

as allowed under these rules, the rules to be applied shall 

be the rules of this state. 

(c) A lawyer shall not be subject to discipline if the 

lawyer's conduct conforms to the rules of a jurisdiction in 

which the lawyer reasonably believes the predominant effect of 

the lawyer's conduct will occur."
No. 2020AP2166-D 

22

urges the court to assess 50% of the pre-appellate costs against 

Attorney Luening. In support of its recommendation, OLR points 

to Attorney Luening's two previous public reprimands. It also 

asserts, "most of the work that OLR performed would have taken 

place regardless of the number of counts charged." OLR 

recommends that the court assess 50% of the costs incurred prior 

to October 24, 2022, or $17,278.44. For the period beginning 

October 24, 2022, OLR recommends that the court assess no costs 

since it concedes those amounts arose directly from the charging 

decision that this court held was improper. 

¶55 Upon consideration of the factors set forth in SCR 

22.24(1m), along with the unique circumstances of this case, we 

adopt the referee's recommendation to impose 25% of the preOctober 24, 2022 costs, or $8,639.22. Of the twelve counts of 

misconduct alleged in OLR's complaint, only three were proven. 

One count was dismissed by OLR, and this court dismissed the 

seven immigration-based counts due to OLR's failure to plead 

them under the rules promulgated by EOIR. If OLR's complaint 

had contained only the five counts unrelated to Attorney 

Luening's practice before an immigration tribunal, this 

proceeding would have been greatly simplified and the costs 

would likely have been a fraction of their actual amount. While 

the referee is correct that costs should not be assessed based 

on "mathematical equality," we conclude that requiring Attorney 

Luening to pay 25% of the pre-October 24, 2022 costs would be 

equitable based on the unique circumstances presented here.
No. 2020AP2166-D 

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¶56 We note that while it may appear that by dismissing 

the seven counts of misconduct arising out of the representation 

of clients before an immigration tribunal and reducing the costs 

of the proceeding by 75%, Attorney Luening is getting off 

lightly, that is not the case. As we noted in Luening I, OLR's 

failure to plead the seven immigration-based counts of 

misconduct under EOIR rules, while simultaneously pleading 

immigration-based counts against another attorney under EOIR 

rules, threatened to undermine confidence in Wisconsin's 

attorney regulatory system given OLR's disparate treatment of 

two similarly situated attorneys. Luening I, 2023 WI 12, ¶20. 

We concluded that the appropriate remedy for OLR's decision not 

to prosecute Attorney Luening's immigration-based misconduct 

counts under EOIR rules was dismissal of those counts. Id., 

¶22. 

¶57 The suspension of an attorney's license to practice 

law, even for a brief period of time, is a significant sanction. 

The attorney is deprived of his livelihood during the period of 

suspension. He is required to notify all clients and courts 

before which he practices of the suspension. The court's order 

of suspension is published and may have an adverse impact on the 

attorney's ability to attract future clients. In short, a 60-

day suspension is not a de minimus sanction, and we find it is 

the appropriate sanction under the unique facts of this case. 

¶58 As to the 75% reduction in costs, since the vast 

majority of the costs incurred in this matter arose out of OLR's 

prosecution of, and Attorney Luening's vigorous defense against, 
No. 2020AP2166-D 

24

the seven immigration-based counts of misconduct that this court 

dismissed, Attorney Luening should be relieved of having to pay 

the costs associated with OLR's significant error in pleading. 

¶59 In closing, we note again that this is Attorney 

Luening's third disciplinary proceeding. We remind him that the 

court may impose progressively severe sanctions when an attorney 

engages in a pattern of misconduct. We impose the sanction 

recommended by the referee in this matter with the expectation 

that Attorney Luening will not commit future misconduct that 

would subject him to additional, potentially harsher, 

discipline.

¶60 IT IS ORDERED that the license of Matthew T. Luening 

to practice law in Wisconsin is suspended for a period of 60 

days, effective January 26, 2024.

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

of this order, Matthew T. Luening shall pay to the Office of 

Lawyer Regulation costs in the amount of $8,639.22. 

¶62 IT IS FURTHER ORDERED that Matthew T. Luening shall 

comply with the requirements of SCR 22.26 pertaining to the 

duties of a person whose license to practice law in Wisconsin 

has been suspended. 
No. 2020AP2166-D 

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