SCOW: professional misconduct warranting suspension does not demonstrate ineffective assistance of counsel

State v. Tyrus Lee Cooper, 2016AP375-CR, 6/20/19, affirming a per curiam court of appeals opinion, case activity (including briefs)

Cooper moved for pre-sentencing plea withdrawal and filed an OLR grievance because his lawyer failed to provide him with discovery, contact witnesses, and communicate with him. Days before trial, his unprepared lawyer misled him about the strength of the State’s case and rushed him into a plea. The circuit court denied Cooper’s motion, but OLR later concluded that the lawyer committed 19 acts of misconduct, 5 directly relating to Cooper’s plea. Consequently, SCOW suspended his license. Now, in 4-3 decision SCOW holds that the lawyer’s professional misconduct does not satisfy the requirements for an ineffective assistance of counsel claim.

Cooper argued that SCOW’s decision to accept the OLR referee’s report, which stated that the lawyer prevented Cooper “from adequately understanding and assisting in his own defense” established that he received ineffective assistance of counsel. The majority says “no.” Drawing a hair-splitting distinction, the majority claims that its disciplinary decision did not accept OLR’s “findings of fact,” just its “conclusions of law.”

The referee’s  report tracked the complaint’s distinction between the facts, on the one hand, and on the other the formal accusation of misconduct. Consequently, the referee’s findings of fact do not contain the assertion that Mr. Hicks “prevent[ed] [Mr.Cooper] from adequately understanding and participating in his own defense . . . See Hicks, 368 Wis. 2d 108, ¶28. That statement appears in the referee’s conclusions of law. So it cannot be said that we adopted the statement on which Mr. Cooper relies as a factual matter. Opinion, ¶19.

C’mon. Courts don’t issue abstract conclusions of law. Legal conclusions necessarily depend upon the facts found in a case.  In the underlying OLR decision, SCOW accepted the attorney’s stipulation to the facts, OLR’s statement of facts and OLR’s conclusions of law based on those facts. SCOW said:

Given Attorney Hicks’ no contest plea, we accept the referee’s factual findings as taken from the OLR’s complaint. We also agree with the referee that those factual findings are sufficient to support a legal conclusion that Attorney Hicks engaged  in the professional misconduct set forth in the 19 counts described above. Disciplinary decision, ¶39

The majority also says that professional misconduct does not automatically qualify as ineffective assistance of counsel. Opinion, ¶¶21-22. And, in this case, the circuit court denied Cooper’s motion to withdraw his guilty plea 2 years before OLR concluded that Hicks’ misconduct interfered with Cooper’s defense. Neither the circuit court nor SCOW are bound by OLR’s decision (affirmed by SCOW ). Furthermore, Cooper did not allege that but for Hicks’ deficient performance he would not have pled guilty. Therefore Cooper did not receive ineffective assistance of counsel. Opinion, ¶¶27-30.

The dissent written by Justice Dallet has a field day with the majority’s efforts to disavow is own disciplinary decision. It’s almost like an Einsteinian multiverse. In one universe the lawyer’s misconduct is so awful that he receives consecutive license suspensions. In a parallel universe, where a criminal defendant’s due process rights are stake, the same conduct is not bad enough to grant relief.

Dallet notes a more obvious distinction that the majority missed.  Different legal standards govern pre and post sentencing plea withdrawal. Dissent, ¶39. The post sentencing standard is much tougher. Strickland v. Washington, 466 U.S. 668 (1984) and Hill v. Lockhart, 474 U.S. 52 (1985) both involved motions for postsentencing plea withdrawl where the defendant had to prove that but for his lawyer’s misconduct he would have gone to trial. SCOTUS has not addressed whether a defendant moving for plea withdrawal due to IAC before sentencing must show the same level of prejudice. The 9th Circuit, for example, requires the defendant to show only that his lawyer’s misconduct “could have motivated his decision to plead guilty.” Dissent, ¶42 (quoting United States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005).