“Beyond the Six-Month Benchmark” –
The Malloy Standard for Progressive Escalation of Attorney Discipline in Wisconsin

1. Introduction

Office of Lawyer Regulation v. Robert T. Malloy, 2025 WI 39, is the latest—and arguably the most instructive—chapter in Wisconsin’s jurisprudence on attorney discipline. The Supreme Court of Wisconsin was faced with a respondent who carried a 30-year history of ethical infractions, administrative suspensions, and failed rehabilitation efforts. After accepting Attorney Malloy’s no-contest plea to eight new counts of misconduct, the referee urged a two-year suspension. The Court, exercising its independent review under SCR 22.17(2), reduced the period to 18 months, imposed restitution, and taxed full costs against the respondent.

The key issue—and the new doctrinal contribution—concerns how far beyond the traditional six-month “upper limit” for non-revocation suspensions a court should go when an attorney’s pattern of misconduct persists despite prior sanctions. The decision crystallises a Malloy Standard: when the conduct mirrors earlier offenses but is aggravated by an entrenched pattern, lack of remorse, and client harm, the Court may leapfrog the six-month benchmark and impose an intermediate suspension (here, 18 months) short of revocation.

2. Summary of the Judgment

• Misconduct Found: Eight counts, spanning mishandling of advanced fees, failure to communicate, disobedience of court orders, failure to cooperate with OLR, lack of competence, and practising while suspended.
• Sanction: 18-month suspension (effective immediately); restitution of \$2,000 to client B.Y.; costs of \$8,362.30.
• Key Holding: Progressive discipline mandates a materially longer suspension than the six-month range applied in factually analogous cases where the attorney lacks Malloy’s disciplinary history.
• Procedural Note: Because the respondent withdrew his notice of appeal, review occurred under SCR 22.17(2), allowing the Court to adopt the referee’s factual findings without full briefing.

3. Detailed Analysis

3.1 Precedents Cited and Distinguished

The Court compared Malloy’s case to four principal decisions, each imposing a six-month suspension:

1. In re Disciplinary Proceedings Against Mauch, 2010 WI 2
2. …Armonda, 2004 WI 82
3. …Raftery, 2007 WI 137
4. …Hammis, 2011 WI 3

All featured failures to communicate, trust-account lapses, client harm, and—critically—practising while suspended. Yet two differences justified escalation:

• Depth of Disciplinary Record: Malloy had four prior public sanctions, including 15 months of earlier suspension and a failed reinstatement attempt—far exceeding the disciplinary résumés of the comparison cases.
• Persistent Pattern Post-Reinstatement: Misconduct recurred within two years of regaining his licence, signalling ineffective rehabilitation.

The Court reaffirmed its commitment to the principle of progressive discipline (see In re Nussberger, 2006 WI 111) and declared that where the quality of violations recurs, the sanction must escalate in quantity (suspension length) until protective goals are met.

3.2 Legal Reasoning

1. Adoption of Referee’s Facts and Law. With no factual challenge, the Court adopted the referee’s findings wholesale, validating each of the eight rule violations (SCR 20:1.5, 1.16, 3.4, 8.4(h), 22.26 et al.).
2. Progressive Discipline Applied. The Court placed Malloy’s case on a continuum. First-time similar misconduct typically yields 4–8 months. The presence of antecedent suspensions, failure to rehabilitate, and ongoing client injury pushed the sanction to triple the six-month benchmark.
3. Aggravating Factors. (a) pattern of misconduct; (b) lack of remorse; (c) blame-shifting; (d) administrative burden on courts; (e) practice during suspension.
4. Mitigating Factors. Very few: a late but partial cooperation through the no-contest plea.
5. Restitution. The Court converted Malloy’s abandoned promise of a \$2,000 refund into a mandatory order, reflecting client-centred discipline.

3.3 Impact on Future Cases

• The “Malloy Standard”. Practitioners should view six months as a threshold, not a ceiling. Where an attorney’s misconduct is repetitive and progressive discipline is warranted, the Court will craft intermediate suspensions (e.g., 12–24 months) before reaching the ultimate remedy of revocation.
• Heightened Scrutiny on Post-Reinstatement Conduct. Attorneys reinstated after lengthy suspensions will be closely monitored; early infractions invite harsh sanctions.
• Restitution Enforcement. Failure to verify repayment now invites direct court orders—expect more routine inclusion of restitution clauses in future discipline orders.
• Procedural Guidance for Referees. Although referees may recommend sanctions outside cited precedent, the Court demands reasoned linkage to existing cases; otherwise it will recalibrate, as here.

4. Complex Concepts Simplified

Advanced Fee vs. Non-Refundable Retainer

An advanced fee is money paid in anticipation of future legal work; under SCR 20:1.5(f) it must be placed in a trust account unless the lawyer uses an alternative “flat-fee” scheme with rigorous client warnings. Wisconsin forbids “non-refundable retainers” in most contexts.

Temporary Suspension under SCR 22.03(4)

If an attorney ignores OLR investigative requests, the Supreme Court may summarily suspend the licence after 20 days’ notice—no separate hearing required.

Progressive Discipline

A disciplinary philosophy that each subsequent infringement should draw a harsher penalty until compliance is achieved, ensuring protection of the public and the integrity of the bar.

Referee v. Court Roles

A referee functions as a fact-finder; the Supreme Court independently decides law and sanctions, though it generally accepts factual findings unless clearly erroneous.

Practice While Suspended

Any legal activity (court appearance, filing, client advice) while a licence is suspended constitutes separate misconduct, enforced through SCR 20:8.4(f) and 22.26(2).

5. Conclusion

Office of Lawyer Regulation v. Malloy fortifies Wisconsin’s disciplinary architecture with a clear message: persistent, unrepentant misconduct will be met with progressively sterner sanctions, leaping beyond traditional six-month suspensions yet stopping short of revocation where rehabilitation, though doubtful, remains theoretically attainable. The Court’s insistence on demonstrable restitution, cost-shifting, and an 18-month suspension underscores its dual commitment to public protection and the integrity of the legal profession. Future respondents should heed the Malloy Standard: the margin for error narrows with each disciplinary step, and the path back to practice grows correspondingly steeper.