2016 WI 12

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP2801-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings 

Against Stuart F. Roitburd, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Stuart R. Roitburd,

 Respondent.

DISCIPLINARY PROCEEDINGS AGAINST ROITBURD

OPINION FILED: February 26, 2016

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED: PROSSER, J. concurs (separate writing appended 

on May 20, 2016 to opinion filed February 26, 

2016)

DISSENTED: ABRAHAMSON, A.W. BRADLEY, J.J., dissent. 

(Opinion Filed)

NOT PARTICIPATING: 

ATTORNEYS:
2016 WI 12

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP2801-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings 

Against Stuart F. Roitburd, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Stuart R. Roitburd,

 Respondent.

FILED

FEB 26, 2016

Diane M. Fremgen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license 

suspended. 

¶1 PER CURIAM. We review Referee Christine Harris 

Taylor's recommendation that the court declare Attorney Stuart 

F. Roitburd in default and suspend his Wisconsin law license for 

a period of two years for professional misconduct in connection 

with his work as personal representative of his mother's estate 

and his non-cooperation with the Office of Lawyer Regulation's 

(OLR) investigation into that misconduct. The referee also 
No. 2014AP2801-D

2

recommended that Attorney Roitburd be required to make 

restitution to his mother's estate in the amount of $43,369.74, 

and to pay the full costs of this proceeding, which total 

$1,120.29 as of August 11, 2015.

¶2 Because no appeal has been filed, we review the 

referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).1 

After conducting our independent review of the matter, we agree 

with the referee that, based on Attorney Roitburd's failure to 

answer the complaint filed by the OLR, the OLR is entitled to a 

default judgment. However, we disagree with the referee that 

Attorney Roitburd's professional misconduct warrants a two-year 

suspension of his Wisconsin law license. We conclude, instead, 

that a 60-day suspension is warranted. We agree with the 

referee that Attorney Roitburd should be ordered to pay the full 

costs of the proceeding. We decline to order restitution for 

the reasons explained below.

¶3 Attorney Roitburd was admitted to practice law in 

Wisconsin in 1984. He had no disciplinary history prior to the 

filing of this complaint. According to the OLR's complaint, his 

 

1 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. 2014AP2801-D

3

law license is currently suspended for failure to cooperate with 

the OLR in the investigation that gave rise to this proceeding.

¶4 On December 5, 2014, the OLR filed the current 

complaint against Attorney Roitburd. The complaint alleges 

three counts of professional misconduct in connection with his 

work as the personal representative of his mother's estate.

¶5 The following facts are taken from the OLR's 

complaint. Attorney Roitburd served as the personal 

representative of his father's estate and, beginning in 2006, of 

his mother's estate. This matter primarily concerns Attorney 

Roitburd's work as the personal representative of his mother's 

estate (hereafter, the "Roitburd Estate"). 

¶6 In April 2011, in connection with the final accounting 

of the Roitburd Estate, the circuit court administering the 

estate ordered Attorney Roitburd to make payments to certain 

creditors by early June 2011. 

¶7 In late June 2011, an attorney appeared on Attorney 

Roitburd's behalf and informed the circuit court that there were 

errors in the final accounting and that Attorney Roitburd needed 

time to correct the errors. 

¶8 The circuit court granted a lengthy adjournment. 

Attorney Roitburd failed to appear at the adjourned hearing 

date. The circuit court ordered Attorney Roitburd to appear at 

a subsequent hearing, which he failed to do. 

¶9 In March 2012, the circuit court removed Attorney 

Roitburd as personal representative of the Roitburd Estate, 

appointed a different attorney to serve as successor personal 
No. 2014AP2801-D

4

representative, and issued a bench warrant for Attorney 

Roitburd. Attorney Roitburd was taken into custody and later 

released on a signature bond. 

¶10 At a subsequent court hearing, the successor personal 

representative testified that multiple assets had not been 

transferred from Attorney Roitburd's father's estate to his 

mother. Attorney Roitburd also canceled five meetings that the 

successor personal representative had scheduled for the purpose 

of discussing the estates of Attorney Roitburd's father and 

mother.

¶11 Attorney Roitburd stated he would return any 

unaccounted for assets to the Roitburd Estate by December 25, 

2012, but failed to do so.

¶12 On motion from the successor personal representative, 

the circuit court entered an order to show cause for the return 

of estate assets. After a hearing at which both Attorney 

Roitburd and the successor personal representative testified, 

the circuit court ordered Attorney Roitburd to repay the 

Roitburd Estate $43,369.74 and to provide proof of payment of 

$13,000 in taxes by mid-March 2013. Although Attorney Roitburd 

ultimately provided proof that he had paid the $13,000 in taxes, 

he never paid the $43,369.74 to the Roitburd Estate. In April 

2013, the circuit court entered an order and judgment finding 

Attorney Roitburd liable to the Roitburd Estate for $43,369.74. 

The judgment remains unsatisfied. 

¶13 During the OLR investigation that gave rise to this 

proceeding, Attorney Roitburd failed to provide responses to the 
No. 2014AP2801-D

5

OLR's repeated requests for information. On May 22, 2014, this 

court temporarily suspended Attorney Roitburd's license due to 

his willful failure to cooperate with the OLR's investigation. 

Attorney Roitburd's license has remained temporarily suspended 

to the date of this opinion.

¶14 Based on the course of conduct described above, the 

OLR alleged in its complaint that Attorney Roitburd knowingly 

disobeyed obligations under the rules of a tribunal, in 

violation of SCR 20:3.4(c)2 (Count One); engaged in conduct 

involving dishonesty, fraud, deceit, or misrepresentation, in 

violation of SCR 20:8.4(c)3 (Count Two); and failed to cooperate 

with the OLR investigation and to provide relevant information, 

answer questions fully, or furnish documents in the course of an 

OLR investigation, in violation of SCR 22.03(2)4 and 

SCR 22.03(6),5 enforced by SCR 20:8.4(h)6 (Count Three).

 

2 SCR 20:3.4(c) provides that a lawyer shall not "knowingly 

disobey an obligation under the rules of a tribunal, except for 

an open refusal based on an assertion that no valid obligation 

exists."

3 SCR 20:8.4(c) provides that it is professional misconduct 

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

deceit or misrepresentation."

4 SCR 22.03(2) provides:

Upon commencing an investigation, the director 

shall notify the respondent of the matter being 

investigated unless in the opinion of the director the 

investigation of the matter requires otherwise. The 

respondent shall fully and fairly disclose all facts 

and circumstances pertaining to the alleged misconduct 

within 20 days after being served by ordinary mail a 

request for a written response. The director may 

(continued)
No. 2014AP2801-D

6

¶15 The OLR personally served the complaint and an order 

to answer on Attorney Roitburd. Attorney Roitburd failed to 

file an answer, and the OLR moved for default judgment. 

¶16 The referee mailed a notice of a hearing on the OLR's 

motion for default judgment to Attorney Roitburd at his address 

on file with the State Bar of Wisconsin. Attorney Roitburd 

failed to appear for the hearing. 

¶17 The referee issued a decision recommending that this 

court grant the OLR's motion for default judgment. In so doing, 

the referee deemed the allegations in the OLR's complaint to be 

established. The referee recommended a two-year suspension of 

Attorney Roitburd's Wisconsin law license, the imposition of the 

full costs of this proceeding against him, and the imposition of 

restitution to the Roitburd Estate in the amount of $43,369.74. 

 

allow additional time to respond. Following receipt 

of the response, the director may conduct further 

investigation and may compel the respondent to answer 

questions, furnish documents, and present any 

information deemed relevant to the investigation.

5 SCR 22.03(6) provides that "[i]n the course of the 

investigation, the respondent's wilful failure to provide 

relevant information, to answer questions fully, or to furnish 

documents and the respondent's misrepresentation in a disclosure 

are misconduct, regardless of the merits of the matters asserted 

in the grievance."

6 SCR 20:8.4(h) provides that it is professional misconduct 

for a lawyer to "fail to cooperate in the investigation of a 

grievance filed with the office of lawyer regulation as required 

by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), 

or SCR 22.04(1)."
No. 2014AP2801-D

7

¶18 Attorney Roitburd did not appeal from the referee's 

report and recommendation. Thus, we proceed with our review of 

the matter pursuant to SCR 22.17(2). We review a referee's 

findings of fact subject to the clearly erroneous standard. See

In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, 

¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We review the referee's 

conclusions of law de novo. Id. We determine the appropriate 

level of discipline independent 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.

¶19 We agree with the referee that Attorney Roitburd 

should be declared in default. Although the OLR effected 

personal service of its complaint, and although Attorney 

Roitburd was given notice of the hearing on the motion for 

default judgment, he failed to appear or present a defense.

Accordingly, we deem it appropriate to declare him in default. 

In addition, the referee properly relied on the allegations of 

the complaint, which were deemed admitted. See In re 

Disciplinary Proceedings Against Coplien, 2010 WI 109, ¶¶10-11, 

329 Wis. 2d 311, 788 N.W.2d 376. We therefore accept the 

referee's findings of fact based on the allegations of the 

complaint. We also agree with the referee that those findings 

of fact adequately support the legal conclusions of professional 

misconduct with respect to the three counts of misconduct 

alleged in the complaint.

¶20 However, we disagree with the referee's recommendation 

that this court impose a two-year license suspension. As noted 
No. 2014AP2801-D

8

above, it is ultimately this court's responsibility, rather than 

the referee's, to determine the appropriate level of discipline. 

See In re Disciplinary Proceedings Against Reitz, 2005 WI 39, 

¶74, 279 Wis. 2d 550, 694 N.W.2d 894. We owe no deference to 

the referee's recommended sanctions. See In re Disciplinary 

Proceedings Against Carroll, 2001 WI 130, ¶37, 248 Wis. 2d 662, 

636 N.W.2d 718. In considering the appropriate sanction, this 

court seeks to impress upon the attorney the seriousness of the 

misconduct, to deter other attorneys from engaging in similar 

misconduct, and to protect the public, the courts, and the legal 

system from a repetition of the misconduct. See, e.g., In re 

Disciplinary Proceedings Against Grogan, 2011 WI 7, ¶17, 

331 Wis. 2d 341, 795 N.W.2d 745.

¶21 Under the unique circumstances of this case, we 

conclude that a 60-day suspension is sufficient to accomplish 

these goals. This is the first time in the more than three 

decades since Attorney Roitburd's admission to the Wisconsin bar 

that he has been the subject of professional discipline in this 

state. Until now, Attorney Roitburd has not created a reason to 

believe that the public, the courts, or the legal system must be 

protected from the risk of his misconduct. We note, too, that

the three counts of misconduct at issue here do not evince an 

extensive pattern of indifference to our ethical rules. 

Finally, we note that our knowledge of Attorney Roitburd's 

misconduct is limited to the facts alleged in the OLR's 

complaint and established by Attorney Roitburd's default. As a 

result, there is much we do not know about his work as personal 
No. 2014AP2801-D

9

representative of his mother's estate, and about the estate 

itself. For example, while we know that certain assets went 

unaccounted for, we do not know whether any mistakes Attorney 

Roitburd made in the administration of the estate rose to the 

level of dishonesty or bad faith. We do not know whether 

Attorney Roitburd was an heir to the estate, such that he might

otherwise have been entitled to receive some amount of the 

assets at issue. We do not know whether his actions affected 

the rights and realization of payments to creditors of the 

estate. 

¶22 We have, in the past, imposed far less than a two-year 

suspension for either comparable or more serious misconduct. 

For example, in In re Disciplinary Proceedings Against 

Fitzgerald, 2008 WI 101, 314 Wis. 2d 7, 752 N.W.2d 879, we 

suspended Attorney Fitzgerald's license for 60 days based on a 

six-count disciplinary complaint. The misconduct included 

Attorney Fitzgerald's appearing on behalf of clients during her 

law license suspension; billing the State Public Defender and 

accepting payment for appearances made on behalf of clients 

during her law license suspension; misleading a county clerk 

about her law license status; and failing to cooperate with the 

OLR. Our 60-day suspension of Attorney Fitzgerald's license 

followed a previous 90-day suspension for numerous instances of 

misconduct. In In re Disciplinary Proceedings Against Osicka, 

2014 WI 33, 353 Wis. 2d 656, 847 N.W.2d 343, this court imposed 

a 60-day suspension based on Attorney Osicka's default to a 

four-count disciplinary complaint. The misconduct included 
No. 2014AP2801-D

10

failing to place a client's advanced fee into a client trust 

account or to provide the notices required by the alternative 

advanced fee procedure; charging an unreasonable fee; failing to 

refund unearned fees; and failing to cooperate with the OLR. 

Our 60-day suspension of Attorney Osicka's license followed two 

previous public reprimands. Finally, in In re Disciplinary 

Proceedings Against Lamb, 2011 WI 101, 338 Wis. 2d 1, 806 N.W.2d 

439, this court imposed a 60-day suspension for 21 counts of 

misconduct related to Attorney Lamb's handling of four client 

matters. Our 60-day suspension of Attorney Lamb's license 

followed a previous private reprimand. 

¶23 In light of our resolutions of prior disciplinary 

actions, and in light of the unique circumstances of this case, 

we deem the OLR's and the referee's recommended two-year 

suspension to be excessive. To be clear, Attorney Roitburd 

should not construe this opinion as a vindication of any aspect 

of his misconduct or his failure to appear at any stage of these 

disciplinary proceedings. We simply conclude that, while 

Attorney Roitburd violated his ethical duties as an attorney, a 

60-day suspension will be sufficient to accomplish the 

objectives of the lawyer disciplinary system. 

¶24 As to the issue of restitution, the OLR requested and 

the referee recommended that this court order Attorney Roitburd 

to pay restitution to the Roitburd Estate in the amount of 

$43,369.74. However, we note that the OLR states in its 

complaint that the circuit court administering the estate has 

entered an order and judgment directing Attorney Roitburd to pay 
No. 2014AP2801-D

11

the estate the amount of $43,369.74. Neither the OLR nor the 

referee explains why this court should order restitution that 

would duplicate that already ordered by the circuit court. We 

therefore deny the referee's recommendation for restitution. We 

deem it appropriate, however, to require, as a condition of the 

reinstatement of his Wisconsin law license, that Attorney 

Roitburd demonstrate to the court that he has satisfied the 

judgment entered by the circuit court against him in the 

Roitburd Estate.

¶25 Finally, we agree that Attorney Roitburd should pay 

the full costs of the proceeding. 

¶26 IT IS ORDERED that the license of Stuart F. Roitburd 

to practice law in Wisconsin is suspended for a period of 

60 days, effective April 26, 2016.

¶27 IT IS FURTHER ORDERED that the temporary license 

suspension of May 22, 2014, which arose out of Stuart F. 

Roitburd's willful failure to cooperate with the OLR's 

investigation in this matter, is lifted.

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

of this order, Stuart F. Roitburd shall pay to the Office of 

Lawyer Regulation the costs of this proceeding.

¶29 IT IS FURTHER ORDERED that compliance with all 

conditions of this order is required for reinstatement. See

SCR 22.28(2). This requirement includes Stuart F. Roitburd's 

obligation to demonstrate to the court that he has satisfied the 

judgment entered by the circuit court against him in Estate of 
No. 2014AP2801-D

12

Shirley Roitburd, Milwaukee County Case No. 06-PR-1840, as 

described above.
No. 2014AP2801-D.dtp

1

¶30 DAVID T. PROSSER, J. (concurring). This attorney 

discipline case is more than "problematic" because the facts are 

not clear. 

¶31 Attorney Roitburd was named personal representative of 

his mother's estate. He had previously served as personal 

representative of his father's estate. Attorney Roitburd 

transferred many thousands of dollars from his mother's estate 

to his own accounts. Allegedly, he had earlier transferred 

money from his father's estate to himself so that it could not 

later be transferred to his mother. When these matters led to a 

discipline charge by the Office of Lawyer Regulation (OLR), 

Attorney Roitburd was not cooperative.

¶32 The majority opinion imposes a suspension of 60 days 

for his conduct; the concurring opinion of Justice Abrahamson 

would impose a suspension of two years. The latter suspension 

is the period of suspension that was sought by OLR and approved 

by the referee after a default judgment.

¶33 It is not uncommon for members of the court to 

disagree about the length of suspension for a disciplined 

attorney, but the difference between two months and two years is 

quite extraordinary. That difference must be grounded in two 

substantially different perceptions of the facts. When the 

facts are not clear, the court is forced to speculate about what 

the facts are or make assumptions about what the facts are, and 

those guesses or assumptions can be wrong.

¶34 Ironically, the court recently reviewed a separate but 

similar case that has been dismissed with no discipline. The 
No. 2014AP2801-D.dtp

2

case involved an attorney who served as trustee for his father's 

estate, which was created to protect the attorney's mother. 

Without authorization, the attorney took approximately $360,000 

from the trust to pay for his gambling. When third parties 

informed the attorney's mother and other members of the family, 

the family rallied around the attorney who promised to pay all 

the money back with interest. The attorney also cooperated with 

the OLR. See OLR v. Karabon, No. 2015AP183-D, which we also 

decide today.

¶35 The facts in the present case do not disclose what 

Attorney Roitburd's family thinks about his conduct. What we do 

know is that Attorney Roitburd did not cooperate with the OLR.

¶36 I believe that some discipline should be imposed in 

this case and that some discipline could have been imposed in 

the other case as well. How much discipline should be imposed 

in this case depends on facts we don't have. For that reason, I 

concur without a decision as to the amount of discipline.
No. 2014AP2801-D.ssa

1

¶37 SHIRLEY S. ABRAHAMSON, J. (concurring in part and 

dissenting in part). The OLR charged Attorney Roitburd with 

three violations of the Rules of Professional Conduct for 

Attorneys. I agree with the per curiam that the three 

violations were established by virtue of Attorney Roitburd's 

default in these proceedings. I also agree that Attorney 

Roitburd should pay the full costs of this disciplinary 

proceeding. I agree, finally, that Attorney Roitburd's 

compliance with all conditions imposed in the per curiam, 

including satisfaction of the judgment entered by the circuit 

court against him in Estate of Shirley Roitburd, Milwaukee 

County Case No. 06-PR-1840, should be required for 

reinstatement. 

¶38 I disagree, however, with two aspects of the per 

curiam: 

¶39 (I) I disagree with the four justices joining the OLR 

per curiam1 blocking release of Justice David T. Prosser's 

separate writing and insisting that his writing be released at a 

later time. No basis exists for this action. Indeed, the four 

justices have violated the Supreme Court's Internal Operating 

Procedures (IOP).

¶40 (II) I disagree with the length of suspension imposed 

by the per curiam opinion. The per curiam grants Attorney 

Roitburd a 22-month reduction in the sanction requested in the 

 

1 I use the phrase "OLR per curiam" to refer to a per curiam 

in an attorney discipline proceedings prepared by a court 

commissioner. See Internal Operating Procedure (IOP) II H. 
No. 2014AP2801-D.ssa

2

OLR complaint to which he defaulted. There is no justification 

for this significant downward departure.

I

¶41 The per curiam insists that Justice Prosser's separate 

writing be held and not be released at the same time as the OLR 

per curiam. They want the per curiam to bear the notation 

"separate writing to follow."2 

¶42 The instant OLR per curiam does not explain why 

Justice Prosser's separate writing will follow later rather than 

be released with the per curiam.

¶43 There is, however, only one possible explanation. The 

four justices must be relying on the procedure for opinion 

preparation and mandate adopted by a majority of the court in 

September 2014.3 

¶44 The September 9, 2014 procedure for opinion 

preparation and mandate is set forth in the Supreme Court's 

Internal Operating Procedures (IOP) at II G. A reading of the 

plain language of IOP II G. demonstrates, however, that IOP II 

G. does not govern the instant OLR per curiam.

¶45 I have attached a copy of Internal Operating Procedure 

II G. as Attachment A.4 Attachment A also includes paragraphs 

 

2 Per curiam, ¶30.

3 See State v. Gonzalez, 2014 WI 124, ¶¶30-31, 359 

Wis. 2d 1, 856 N.W.2d 580 (Abrahamson, C.J., concurring) 

(setting forth in full the procedure adopted by the court and 

disagreeing with its adoption). 

4 The Supreme Court Internal Operating Procedures are 

printed in volume 6 of the Wisconsin Statutes. 
No. 2014AP2801-D.ssa

3

adjacent to IOP II G. to put II G. in context. Attachment A 

sets forth paragraphs E, F, G, and H of "II. Decisional 

Procedure—Appellate and Original Jurisdiction." 

¶46 Apparently Justice Prosser's separate writing is 

viewed by the four justices as falling within IOP II G. 55 and 

IOP II G. 66 because Justice Prosser's separate writing compares 

in general terms the instant case with a pending OLR case that 

raises similar issues. 

 

5 Section 5 of IOP II G. provides as follows relating to the 

"separate writing to follow" notation:

5. Separate Writings to Follow. If, during the 

course of a separate writing, the author cites to a 

case then pending before the court for which the 

opinion of the court has not been released, the 

majority opinion shall be released with the 

designation "separate opinion(s) to follow," unless 

the citation can be replaced with ellipses in which 

case the separate opinion shall be released with the 

majority opinion and the ellipses shall be replaced 

with the omitted citation when the cited opinion is 

released. There shall be no further changes to the 

separate writings after mandate. Separate writings 

for which the citation cannot be replaced with 

ellipses shall be released when the then unreleased 

decision that was cited in the separate opinion is 

released.

6 Section 6 of IOP II G. provides as follows relating to the 

"separate writing to follow" notation:

6. Holds; Tying Together Release of Two Pending 

Cases. No one justice may block the release of a 

majority opinion by a "Hold." It shall take the 

affirmative vote of the majority of the participating 

justices to block the release of a majority opinion. 

No one justice may tie together the release of two 

pending cases. It shall take the affirmative vote of 

a majority of the participating justices in each case 

to tie together the release of two pending cases.
No. 2014AP2801-D.ssa

4

¶47 I conclude that IOP II G. does not apply to OLR per 

curiam opinions. OLR per curiam opinions are governed by IOP II 

H. (entitled Per Curiam Opinion) and IOP II I. (entitled 

Mandate). 

¶48 I would follow the Internal Operating Procedures. 

Therefore the opinion in the instant OLR per curiam should not 

be released at this time. The per curiam in the instant OLR 

case and Justice Prosser's separate writing should be released 

at the same time as (or after) the other OLR per curiam to which 

Justice Prosser's separate writing refers. 

¶49 Applying IOP II G. to the instant OLR per curiam 

violates the text of IOP II G. IOP II G. is written entirely in 

terms of opinions authored by a justice. See the text of IOP II 

G. set forth in Attachment A. OLR per curiams are not authored 

by a justice. 

¶50 Furthermore, IOP II H. and IOP II I. explicitly govern 

the procedure to be followed for per curiam opinions in attorney 

disciplinary proceedings. IOP II H. provides (emphasis added):

H. Per Curiam Opinion

Per curiam opinions may be prepared by a justice 

or a court commissioner for consideration by the 

court. Per curiam opinions in judicial and attorney 

disciplinary proceedings are prepared by a court 

commissioner for the court's consideration. The 

decisions in all cases are made by the court, and the 

per curiam opinions are reviewed by the entire court 

and are approved as to form and substance by the court 

prior to issuance. 

¶51 IOP II I. provides (emphasis added): 

I. Mandate
No. 2014AP2801-D.ssa

5

The court's decision in a case is mandated 

promptly upon approval of the opinion by the court, as 

set forth above, and upon notification by the chief 

justice to the clerk, or upon notification by the 

author of the majority opinion if the chief justice is 

unable or unwilling to notify the clerk. The court's 

opinion is issued simultaneously with any concurring 

or dissenting opinions, unless concurring or 

dissenting opinion or opinions come within paragraph 5 

above as "Separate Writing to Follow."

¶52 In contrast to IOP II G. 5., relating to "separate 

writing to follow," IOP II I. sets forth the general rule that a 

court's opinion is mandated simultaneously with any concurring 

or dissenting opinions (except when a concurring or dissenting 

opinion or opinions falls within section 5 of IOP II G.). 

¶53 Here is how justice-authored opinions governed by IOP 

II G. differ from OLR per curiam opinions:

• The September 2014 procedure speaks to a majority 

opinion authored by a justice. But an OLR per curiam 

is not authored by a justice. 

• A justice-authored opinion is assigned to a justice by 

the court. In contrast, an OLR attorney discipline 

matter is assigned to a supreme court staff 

commissioner by the Clerk of the Supreme Court. 

• The justice who authors a majority opinion has been 

instructed with regard to the writing by the court. 

With regard to an OLR per curiam, the court 

commissioner recommends a resolution to the court. 

The court may accept or change the recommended 

resolution of the OLR matter. The commissioner drafts 

the per curiam and circulates it to the justices for 

approval or separate writings.
No. 2014AP2801-D.ssa

6

• Four justices must agree to hold a conference to 

discuss a draft of a justice-authored opinion. In 

contrast, four votes are not needed for a court 

conference on a circulated OLR per curiam opinion. 

• The Internal Operating Procedures state procedures and 

time periods for circulating and mandating a justiceauthored opinion. In contrast, an OLR per curiam and 

separate writings relating to the per curiam are not 

governed by the procedures or time periods set forth 

by IOP II G. 

¶54 In sum, IOP II G. entitled "Opinions" relates to 

justice-authored majority and lead opinions. IOP II G. does not 

relate to OLR per curiams. OLR per curiams are governed by IOP 

II H. and IOP II I.

¶55 Several justices have become so enamored with the 

"separate writing to follow" notation that they have threatened 

its use in situations that have no relationship to IOP II G. 5. 

In other words, they want to extend the "separate writing to 

follow" practice to separate writings that do not have anything 

to do with a pending case that has not yet been released. 

¶56 For example, as I noted in my dissent to an order 

issued on December 4, 2015 in what is collectively known as "the 

John Doe trilogy,"7 I was directed that any separate writing I 

 

7 The John Doe case comprises the following matters: Three 

Unnamed Petitioners v. Peterson, Nos. 2013AP2504-2508-W; Two 

Unnamed Petitioners v. Peterson, No. 2014AP296-OA; Schmitz v. 

Peterson, Nos. 2014AP427-421-W.
No. 2014AP2801-D.ssa

7

prepared would not be issued along with the order unless I 

circulated my separate writing within a short time after the 

majority writing was circulated.8 The same thing happened about 

a month later, with regard to another order in the John Doe 

trilogy that was issued on January 12, 2016.9 Again I objected. 

¶57 In both orders, I noted that the court's practice of 

using "separate writing to follow" serves to stifle minority 

views and full consideration of the case and in fact may 

encourage a later circulation of a separate writing. 

¶58 In any event, this "separate writing to follow" 

intimidation in the John Doe trilogy violates IOP II H. which 

clearly states as follows: "The court's opinion is issued 

simultaneously with any concurring or dissenting opinion or 

opinions, unless concurring or dissenting opinion or opinions 

come within paragraph 5 above as "separate writing to follow." 

In the John Doe trilogy my separate writings made no reference 

to any pending but unreleased opinion.10 

 

8 Three Unnamed Petitioners v. Peterson, Nos. 2013AP2504-

2508-W; Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA; 

Schmitz v. Peterson, Nos. 2014AP427-421-W, unpublished order, 

¶¶23-32 (Abrahamson, J., dissenting) (Dec. 4, 2015).

9 Three Unnamed Petitioners v. Peterson, Nos. 2013AP2504-

2508-W; Two Unnamed Petitioners v. Peterson, No. 2014AP296-OA; 

Schmitz v. Peterson, Nos. 2014AP427-421-W, unpublished order, 

¶¶31-35 (Abrahamson, J., concurring in part and dissenting in 

part) (Jan. 12, 2016).

10 I have also noted my objections to the court's recent 

failure to follow our IOPs in State v. Finley, No. 2014AP2488-

CR, unpublished order (Jan. 11, 2016); Regency West Apts. LLC v. 

City of Racine, No. 2014AP2947, unpublished order (Jan. 11, 

2016); and Wis. Carry, Inc. v. City of Madison, No. 2015AP146, 

unpublished order (Jan. 11, 2016).
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¶59 In sum, IOP II G. does not apply to OLR per curiams. 

Per curiam opinions relating to attorney discipline are governed 

by IOP II H. and IOP II I.

¶60 Moreover, the "separate writing to follow" tool in IOP 

II G. 5. and IOP II G. 6. is peculiar to Wisconsin appellate 

practice. "Separate writing to follow" will be confusing to the 

litigants, readers of opinions, and publishers of opinions. It 

raises numerous problems. Under these circumstances, it is best 

to cabin "separate writing to follow," not expand it beyond its 

present borders. 

II

¶61 I turn now to the length of suspension imposed by the 

per curiam. Attorney Roitburd has known since he received the 

OLR complaint that the OLR sought a two-year suspension. He has 

also known since he received the referee's report that the 

referee recommended a two-year suspension. Yet he has never 

questioned or challenged that recommended suspension. He has 

not been heard from whatsoever. 

¶62 Problematically, the per curiam appears to give 

Attorney Roitburd the benefit of the doubts created by his own 

non-participation. The per curiam notes, for example, that we 

do not know all the facts concerning Attorney Roitburd's work as 

personal representative of his mother's estate, nor do we know 

the details of the estate itself. The per curiam holds open the 

possibility that Attorney Roitburd did not engage in dishonest 

or bad faith behavior at all. According to the per curiam, this 

uncertainty justifies an over 90% reduction in the OLR's and the 
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referee's recommended suspension, even though Attorney Roitburd 

never made an appearance to oppose that suspension. Based on 

this result, a lawyer facing misconduct charges could hardly be 

blamed for believing that the best defense is no defense—indeed, 

no cooperation with the disciplinary process at all. 

¶63 In my view, Attorney Roitburd cannot supply by default 

the grounds for a reduction of a sanction that he never opposed. 

It must be remembered that Attorney Roitburd has neither alleged 

nor offered any evidence from which any fact in his favor could 

possibly be found. There is also no claim that the facts 

alleged in the OLR's complaint, which the referee deemed 

admitted by virtue of Attorney Roitburd's default, are 

erroneous, much less clearly so. See In re Disciplinary 

Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 

675 N.W.2d 747 (referee's findings of fact must be affirmed 

unless clearly erroneous). 

¶64 We must therefore resolve this case with the 

understanding that the facts are exactly as the OLR alleges. 

Those facts include Attorney Roitburd's failure to return to his 

mother's estate over $43,000 in unaccounted-for assets; his 

repeated failure to appear at court hearings scheduled to 

discuss estate assets; the circuit court's issuance of a bench 

warrant for him; the circuit court's removal of him as personal 

representative; his repeated failure to meet with the successor 

personal representative to discuss estate assets; and his total 

refusal to cooperate with the OLR. 
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¶65 Our precedent shows that these facts merit a two-year 

license suspension. See, e.g., In re Disciplinary Proceedings 

Against Goldstein, 2010 WI 26, 323 Wis. 2d 706, 782 N.W.2d 388 

(imposing a two-year suspension for misconduct that included 

converting nearly $70,000 from three probate estates for which 

the attorney served as special administrator or personal 

representative); In re Disciplinary Proceedings Against 

Krezminski, 2007 WI 21, 299 Wis. 2d 152, 727 N.W.2d 492 

(imposing a two-year suspension for converting client funds that 

the lawyer held in his capacity as personal representative for 

an estate, knowingly offering false evidence, and failing to 

communicate with a client). 

¶66 I would therefore order a two-year suspension. I 

would not do as the majority has done: construe the slimness of 

the default record——caused by Attorney Roitburd's total failure 

to join issue——as a mitigating circumstance. We recently 

explained that it is unnecessary for a referee to take evidence 

regarding the allegations of an OLR complaint after a 

declaration of default. See In re Disciplinary Proceedings 

Against Boyle, 2015 WI 90, ¶¶53-55, 364 Wis. 2d 544, 869 

N.W.2d 475 (deeming unnecessary the referee's post-default 

"prove-up" hearing and reducing requested costs by 40% as a 

result). Today's decision teaches just the opposite. 

¶67 For the reasons set forth, I dissent regarding the 

discipline.

¶68 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this opinion.
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