2014 WI 103

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP1965-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings 

Against Joseph L. Sommers, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Joseph L. Sommers,

 Respondent. 

DISCIPLINARY PROCEEDINGS AGAINST SOMERS

OPINION FILED: AUGUST 5, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED:

DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)

CROOKS, J., dissents. (Opinion filed.)

NOT PARTICIPATING: ZIEGLER, GABLEMAN, JJ., did not participate. 

ATTORNEYS:
2014 WI 103

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP1965-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings 

Against Joseph L. Sommers, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Joseph L. Sommers,

 Respondent.

FILED

AUG 5, 2014

Diane M. Fremgen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney publicly 

reprimanded. 

¶1 PER CURIAM. We review, pursuant to SCR 22.17(2),1 the 

report of Referee John B. Murphy recommending the court suspend 

 

1 SCR 22.17(2) states: 

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. 2012AP1965-D 

2

Attorney Joseph L. Sommers' license to practice law for a period 

of 60 days for professional misconduct. This was a default 

proceeding. No appeal was filed. 

¶2 We approve and adopt the referee's findings of fact 

and conclusions of law. We agree that Attorney Sommers' 

misconduct warrants public discipline, but deem a public 

reprimand sufficient. We impose the full costs of the 

proceeding on Attorney Sommers, which total $5,033.16 as of 

August 8, 2013.2 

¶3 Attorney Sommers was admitted to practice law in 

Wisconsin in 1992. His Wisconsin law license is currently 

suspended for nonpayment of State Bar dues and for noncompliance 

with continuing legal education (CLE) requirements. Attorney 

Sommers was previously suspended for 30 days as discipline in a 

matter that is intertwined with the allegations in the pending 

complaint. In re Disciplinary Proceedings Against Sommers, 2012 

WI 33, 339 Wis. 2d 580, 811 N.W.2d 387. 

¶4 In 2001 A.R. was charged, and later acquitted of, 

homicide by negligent operation of a motor vehicle. The case 

was initially prosecuted by Assistant District Attorney Paul 

Humphrey. Attorney Sommers defended A.R. Interactions between 

the two lawyers were contentious.

¶5 In November 2006 the Office of Lawyer Regulation (OLR) 

charged both Attorney Sommers and Attorney Humphrey with 

 

2 The OLR has also filed a statement indicating no 

restitution is warranted in this matter.
No. 2012AP1965-D 

3

professional misconduct based on incidents that occurred during 

the prosecution of A.R. 

¶6 On January 2, 2007, Attorney Sommers announced his 

candidacy for the Wisconsin Supreme Court. On January 4, 2007, 

Attorney Sommers wrote a letter to the Chief Justice of the 

Wisconsin Supreme Court. He provided copies of this letter to 

all of the Wisconsin Supreme Court justices and to the OLR. 

Attorney Sommers did not provide a copy to counsel for Attorney 

Humphrey.

¶7 In the January 4, 2007 letter Attorney Sommers advised 

the court of his supreme court candidacy. He also claimed that 

Attorney Humphrey engaged in prosecutorial misconduct in the 

A.R. case and in several other cases. His allegations far 

exceeded the scope of the official court record in the thenpending Humphrey disciplinary matter. The letter was posted to 

Attorney Sommers' web site, www.sommersforsupremecourt.com. 

¶8 Counsel for Attorney Humphrey filed a grievance with 

the OLR asserting, inter alia, that Attorney Sommers did not 

contemporaneously provide a copy of this letter and accompanying 

materials to him. 

¶9 On February 5, 2007, Attorney Sommers issued a press 

release entitled, "Corruption in Wisconsin Courts——Supreme Court 

Candidate Speaks Out" (hereinafter "Press Release"). The Press 

Release describes Attorney Sommers' reasons for seeking election 

to the court and purports to explain, as relevant here, "How 

innocent defendants plead out every day in Wisconsin courts," 
No. 2012AP1965-D 

4

and "[h]ow judges are permitted to get away with falsifying the 

record." 

¶10 Counsel for Attorney Humphrey filed another grievance 

alleging this Press Release constituted an unsubstantiated 

attack on the courts and judges of Wisconsin and was designed to 

undermine public confidence in the judiciary in violation of the 

Attorney's Oath.

¶11 Following receipt of these grievances, the OLR 

directed Attorney Sommers to respond, in writing, to the 

assertion that his letter and the Press Release violated rules 

of professional conduct. Attorney Sommers sent his written 

response to the OLR's inquiry, a letter dated May 21, 2007, 

directly to the supreme court, rather than to the OLR. 

¶12 Counsel for Attorney Humphrey filed a third grievance 

asserting that this letter was an improper attempt to influence 

the supreme court and constituted an ex parte communication.

¶13 On January 9, 2008, the OLR provided Attorney Sommers 

with a preliminary investigative report relating to the abovementioned grievances. On January 24, 2008, Attorney Sommers 

sent another letter to the chief justice, with copies to the 

other justices and to various other individuals and entities in 

addition to the OLR. 

¶14 On September 6, 2012, the OLR filed the pending 

disciplinary complaint alleging that the three letters sent 

January 4, 2007, May 21, 2007, and January 24, 2008, each 

constitute an impermissible ex parte communication with a judge 

or other official in violation of former or current 
No. 2012AP1965-D 

5

SCR 20:3.5(b)3 (Count One); that by publishing or allowing to be 

published on his web page the January 4, 2007 letter to the

supreme court, Attorney Sommers made extrajudicial statements 

that he knew or reasonably should have known would have a 

substantial likelihood of materially prejudicing an adjudicative 

proceeding in the matter, in violation of (former) SCR 20:3.6(a)4 

 

3 Former SCR 20:3.5(b) (effective through June 30, 2007) 

applied to the first two letters and stated: 

A lawyer shall not: . . . (b) communicate ex 

parte with such a person except as permitted by law or 

for scheduling purposes if permitted by the court. If 

communication between a lawyer and judge has occurred 

in order to schedule a matter, the lawyer involved 

shall promptly notify the lawyer for the other party 

or the other party, if unrepresented, of such 

communication; . . . .

Current SCR 20:3.5(b) (effective as of July 1, 2007) 

applies to the third letter and states: 

A lawyer shall not: . . . (b) communicate ex 

parte with such a person during the proceeding unless 

authorized to do so by law or court order or for 

scheduling purposes if permitted by the court. If 

communication between a lawyer and judge has occurred 

in order to schedule the matter, the lawyer involved 

shall promptly notify the lawyer for the other party 

or the other party, if unrepresented, of such 

communication; . . . .

4 Former 20:3.6(a) (effective through June 30, 2007) stated: 

A lawyer who is participating or has participated 

in the investigation or litigation of a matter shall 

not make an extrajudicial statement that a reasonable 

person would expect to be disseminated by means of 

public communication if the lawyer knows or reasonably 

should know that it will have a substantial likelihood 

of materially prejudicing an adjudicative proceeding 

in the matter.
No. 2012AP1965-D 

6

(Count Two); and that by publishing the Press Release on an 

Internet web site, Attorney Sommers violated the Attorney's 

Oath, SCR 40.15, by failing to maintain the respect due to 

courts of justice and judicial officers, made actionable via SCR 

20:8.4(g)5 (Count Three). The OLR asked the court to suspend 

Attorney Sommers' license for 60 days.

¶15 The court appointed Referee John Murphy on 

November 19, 2012. Attorney Sommers did not participate in the 

proceeding and, on January 10, 2013, the OLR moved for a default 

judgment. After ordering a continuance to ensure that Attorney 

Sommers was properly served, the referee found that Attorney 

Sommers had failed to appear and that default judgment was 

appropriate. Accordingly, the referee's findings of fact are 

based on the allegations of the complaint filed by the OLR. 

¶16 The referee requested the parties brief the issue of 

discipline. The OLR filed a brief reiterating its request for a 

60-day suspension and imposition of full costs. Attorney 

Sommers did not respond. On July 22, 2013, the referee filed a 

report recommending a 60-day suspension. 

¶17 Neither party appealed. The court is now tasked with 

considering whether the referee's factual findings are clearly 

erroneous and considering, de novo, whether the conclusions of 

law are correct. In re Disciplinary Proceedings Against 

Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We 

 

5 SCR 20:8.4(g) states it is professional misconduct for a 

lawyer to "violate the attorney's oath; . . . ."
No. 2012AP1965-D 

7

are free to impose whatever discipline we deem appropriate, 

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. In light of Attorney Sommers' 

failure to appear or participate in this case, default judgment 

is appropriate. Neither party challenged the referee's findings 

of fact. We adopt those findings, which are based on the 

allegations in the OLR's complaint. 

¶18 The complaint alleges that the three above-mentioned 

letters sent by Attorney Sommers to the supreme court were 

impermissible ex parte communications in violation of current or 

former SCR 20:3.6. 

¶19 To ensure the record is clear, we note that the 

January 4, 2007 letter was not filed in the Humphrey 

disciplinary case file. The letter was addressed to the chief 

justice and did not include a case number. The court construed 

the letter as a complaint against the OLR filed pursuant to 

SCR 22.25(8)6 because, in addition to the myriad of accusations 

regarding Attorney Humphrey, Attorney Sommers asked the court to 

investigate the OLR's handling of his own disciplinary case. He 

 

6 SCR 22.25(8) states: 

Allegations of malfeasance against the director, 

retained counsel, a member of a district committee, a 

member of the preliminary review committee, a member 

of the board of administrative oversight, a special 

investigator, a member of the special preliminary 

review panel, or a referee shall be referred by the 

director to the supreme court for appropriate action.
No. 2012AP1965-D 

8

asserted in the letter that the complaint filed against him was 

"falsified," and that the OLR had failed to pursue allegations 

he made concerning Attorney Humphrey's conduct. 

¶20 Regardless of how the January 4, 2007 letter was 

construed for filing purposes, it contained sweeping accusations 

regarding Attorney Humphrey. Attorney Sommers sent the letter 

to all members of this court while Humphrey's disciplinary 

proceeding was pending before this court. Attorney Sommers did 

not provide counsel for Attorney Humphrey with a copy of the 

letter. The referee correctly concluded that this letter was an 

impermissible ex parte communication, and we accept that 

conclusion. 

¶21 Attorney Sommers' letter dated May 21, 2007, also 

contained statements concerning Attorney Humphrey and was sent 

to the court during the pendency of Humphrey's disciplinary 

proceeding. Although several public officials are copied on the 

letter, counsel for Attorney Humphrey is not. Again, we agree 

with the referee's conclusion that this letter was an 

impermissible ex parte communication. 

¶22 Finally, we note that Attorney Sommers' January 24, 

2008 letter indicates several individuals were "copied" on the 

letter, including counsel for Attorney Humphrey. The OLR's 

complaint, however, avers that counsel did not contemporaneously 

receive a copy of this letter. The referee deemed the 

allegations in the complaint as true and thus concluded that 

this letter was another impermissible ex parte communication. 

We accept that conclusion.
No. 2012AP1965-D 

9

¶23 We next consider whether Attorney Sommers made 

extrajudicial statements that he knew or reasonably should have 

known would have a substantial likelihood of materially 

prejudicing an adjudicative proceeding in violation of 

SCR 20:3.6(a) when he published or allowed to be published his 

January 4, 2007 letter on his webpage. The rule then in effect, 

SCR 20:3.6(a) provided: 

A lawyer who is participating or has participated 

in the investigation or litigation of a matter shall 

not make an extrajudicial statement that a reasonable 

person would expect to be disseminated by means of 

public communication if the lawyer knows or reasonably 

should know that it will have a substantial likelihood 

of materially prejudicing an adjudicative proceeding 

in the matter.

¶24 We accept the referee's uncontested findings and 

conclusion that by posting the January 2007 letter on his 

website, Attorney Sommers violated the aforementioned rule. 

¶25 The OLR alleges and the referee agreed that Attorney 

Sommers violated the Attorney's Oath, SCR 40.15, made actionable 

via SCR 20:8.4(g) when he posted a press release on a web site 

established to promote Attorney Sommers' candidacy for judicial 

office in which he sweepingly asserts, inter alia, that "judges 

are permitted to get away with falsifying the record."

¶26 In State v. Eisenberg, 48 Wis. 2d 364, 180 N.W.2d 529 

(1970), this court stated:

License to practice law in this state is granted 

on implied understanding that an attorney shall at all 

times demean himself in proper manner and refrain from 

such practices which bring disrepute upon himself, the 

profession and the courts. This implied understanding 
No. 2012AP1965-D 

10

is also affirmed by the oath taken by the attorney on 

admission to practice. 

Id. at 380-81. The Attorney's Oath states, in pertinent part:

I will maintain the respect due to courts of 

justice and judicial officers;

. . . .

I will abstain from all offensive personality and 

advance no fact prejudicial to the honor or reputation 

of a party or witness, unless required by the justice 

of the cause with which I am charged; . . . . 

See SCR 40.15. 

¶27 Thus, a lawyer may violate the Attorney's Oath by 

conduct that occurs out of court as well as by in-court conduct. 

See In re Disciplinary Proceedings Against Johann, 216 

Wis. 2d 118, 574 N.W.2d 218 (1998) (disciplining attorney for 

distributing a handout strongly critical of the man who was her 

child's father and the man's wife). Often, alleged violations 

of SCR 40.15 involve the "offensive personality" component of 

the oath. Here, the OLR alleges that Attorney Sommers failed to 

abide by that component of the oath that requires lawyers 

maintain the respect due to courts of justice and judicial 

officers. 

¶28 We must take care to limit the scope and application 

of the Attorney's Oath so that it does not reach a substantial 

amount of constitutionally protected conduct or significantly 

inhibit an attorney's exercise of the right of free speech. We 

are reluctant to deem that statements made during a judicial 

election violate the Attorney's Oath. The Attorney's Oath 
No. 2012AP1965-D 

11

should not be invoked to stifle legitimate critique of judicial 

administration or process.

¶29 However, Attorney Sommers' sweeping assertion that 

"judges are permitted to get away with falsifying the record" 

reflects outspoken contempt for the entire court system. He has 

declined to participate in this proceeding. The facts 

underlying the referee's conclusion that Attorney Sommers 

violated that portion of the Attorney's Oath requiring an 

attorney licensed by this court to maintain the respect due to 

courts and judicial officers are a matter of record and are not 

disputed. We emphasize that this determination is made in the 

context of a default proceeding and our holding is limited to 

the facts of this case. In sum, the referee's findings of fact 

on this point have not been shown to be clearly erroneous, and 

we adopt them as well as his conclusion of law.

¶30 The referee recommends a 60-day suspension. As the 

referee observes, improper ex parte communications typically 

result in a range of sanctions from a private reprimand to a 

one-year suspension. See, e.g., In re Disciplinary Proceedings 

Against Ragatz, 146 Wis. 2d 80, 86, 429 N.W.2d 488 (1988) 

(concluding that an attorney's written ex parte communications 

with a judge was deemed "an advocacy piece" designed to 

influence the outcome of litigation justifying a 60-day 

suspension). Similarly, discipline for improper publicity has 

resulted in discipline ranging from private reprimands to 

lengthy suspensions. See, e.g., Private Reprimand No. 1994-17 

(district attorney violated SCR 20:3.6 with statements to press 
No. 2012AP1965-D 

12

about defendant); In re Disciplinary Proceedings Against 

Eisenberg, 144 Wis. 2d 284, 423 N.W.2d 867 (1988). Violation of 

the Attorney's Oath also yields sanctions ranging from a private 

reprimand to a six-month suspension. See, e.g., Johann, 216 

Wis. 2d at 120-21, 128 (six-month suspension for attorney who 

made inflammatory statements about her estranged husband during 

a custody battle); In re Disciplinary Proceedings Against Blask, 

216 Wis. 2d 129, 573 N.W.2d 835 (1998) (publicly reprimanding 

lawyer who engaged in separate physical altercations with 

people). 

¶31 Attorney Sommers has previously been disciplined in a 

matter that included a violation of the Attorney's Oath. As an 

experienced lawyer, Attorney Sommers should know that 

contemporaneously copying opposing counsel on correspondence 

relating to the matters at issue is not a mere courtesy but an 

ethical requirement. Without excusing the misconduct, which is 

serious, we are mindful that this proceeding stems from and is 

intertwined with the underlying disciplinary proceedings and 

prosecution of A.R., which elicited extraordinary and, we hope, 

unusual animosity between opposing counsel. On careful 

consideration, we deem a public reprimand sufficient to address 

Attorney Sommers' misconduct in this matter. 

¶32 No objection to costs was filed. We accept the 

referee's recommendation that Attorney Sommers should be 

required to pay the full costs of this proceeding which total 

$5,033.16. 
No. 2012AP1965-D 

13

¶33 IT IS ORDERED that Joseph L. Sommers is publicly 

reprimanded for professional misconduct.

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

of this order, Joseph L. Sommers shall pay to the Office of 

Lawyer Regulation the costs of this proceeding.

¶35 IT IS FURTHER ORDERED that the director of the Office 

of Lawyer Regulation shall advise the court if there has not 

been full compliance with all conditions of this order.

¶36 ANNETTE KINGSLAND ZIEGLER, J., and MICHAEL J. 

GABLEMAN, J., did not participate.
No. 2012AP1965-D.ssa

1

¶37 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The 

allegations in the pending complaint are intertwined with 

matters for which Attorney Sommers and Attorney Humphrey have

each been suspended for 30 days. 

¶38 I do not condone Attorney Sommers' conduct, but I do 

grasp his distress about what he views as injustices to his 

client and slip-ups in the disciplinary proceeding against him. 

¶39 Attorney Sommers is presently not eligible to practice 

law. He has not paid State Bar dues; he has not complied with 

continuing legal education requirements. Attorney Sommers 

advised the court in the previous disciplinary proceeding that a 

suspension might mean that he could never practice law. 

¶40 The court has discretion whether to impose discipline. 

SCR 21.16. I would not impose any discipline in the present 

matter. 
No. 2012AP1965-D.npc

1

¶41 N. PATRICK CROOKS, J. (dissenting). I respectfully 

dissent in regard to the discipline imposed. Rather, I would 

follow the recommendation of the Referee, John B. Murphy, and 

impose a 60-day suspension and require the respondent to pay the 

full costs of the proceedings.

 
No. 2012AP1965-D.npc

1