Progressive Discipline Re-Calibrated: Wisconsin Supreme Court Authorises Mid-Range (18-Month) Suspensions for Recidivist Attorney Misconduct

Introduction

The decision in Office of Lawyer Regulation v. Robert T. Malloy, 2025 WI 39, marks a notable recalibration of Wisconsin’s disciplinary jurisprudence. Facing eight counts of professional misconduct across two client matters and significant procedural missteps during the disciplinary process itself, Attorney Robert T. Malloy was ultimately suspended for 18 months, ordered to pay $2,000 in restitution, and assessed $8,362.30 in costs. The Supreme Court of Wisconsin rejected the referee’s recommendation of a two-year suspension but nonetheless imposed a period triple the six-month benchmark that ordinarily governs comparable cases. The Court’s detailed explanation provides fresh guidance on:

How progressive discipline interacts with repetitive, patterned misconduct.
The factors warranting a departure upward from prior six-month precedents without reaching revocation.
The Court’s heightened intolerance for practitioners who minimise responsibility and disregard regulatory directives.

Summary of the Judgment

After accepting Attorney Malloy’s no-contest plea to eight misconduct counts, Referee Jean DiMotto recommended a two-year suspension, citing Malloy’s “breathtaking” negligence, failure to cooperate, and lengthy record. Upon Malloy’s withdrawal of his appeal, the Supreme Court reviewed the matter under SCR 22.17(2). While it concurred in each finding of misconduct, the Court:

Reduced the suspension to 18 months, deeming it “sufficient to satisfy the purposes of professional discipline.”
Ordered restitution of $2,000 to former client B.Y. within 60 days and proof thereof.
Assessed full costs against Malloy.
Emphasised that compliance with all conditions is a prerequisite to future reinstatement.

Analysis

1. Precedents Cited and Their Influence

The Office of Lawyer Regulation (OLR) relied on four earlier six-month suspension cases—Mauch (2010), Armonda (2004), Raftery (2007), and Hammis (2011)—arguing that Malloy’s misconduct was analogous. The Court dissected each precedent, highlighting distinguishing aggravators in Malloy’s conduct:

Disciplinary History: Unlike the cited attorneys, Malloy accumulated a consensual public reprimand, two suspensions totalling 15 months, an unsuccessful reinstatement attempt, an additional public reprimand, and 22 years of intermittent suspension before the present case.
Multiplicity & Variety of Misconduct: Current counts spanned trust-account abuses, lack of diligence, failure to comply with court orders, practicing while suspended, and non-cooperation—reflecting a systemic pattern rather than isolated lapses.
Attitude & Remorse: The referee’s unrebutted findings that Malloy minimised wrongdoing and shifted blame warranted a harsher sanction under Wisconsin’s emphasis on attorney rehabilitation and protection of the public.

These aggravators justified an upward departure from the six-month “cluster” without invoking the “most severe sanction” of revocation. Through this comparative lens, the Court crafted a new operative range—mid-range suspensions (12-24 months)—for recidivist attorneys whose patterns exceed prior benchmarks yet fall short of warranting license revocation.

2. Legal Reasoning

The Court’s reasoning can be distilled into five pillars:

Adoption of Facts & Law: Malloy’s no-contest plea and stipulation permitted the Court to adopt the referee’s findings wholesale, establishing eight violations of SCR 20 and SCR 22.
Progressive Discipline Doctrine: Citing In re Nussberger, the Court reiterated that sanctions must escalate with successive violations to protect the public and deter misconduct.
Proportionality to Prior Case Law: While honouring precedent, the Court underscored that “no two disciplinary cases are exactly alike,” warranting tailored sanctions where aggravators abound.
Purpose of Discipline: The combination of safeguarding the public, courts, and legal profession, together with deterring similar behaviour and rehabilitating the offender, informed the 18-month period.
Restitution & Costs: The Court integrated restitution into the disciplinary outcome, aligning with SCR 22.29(4)(c)’s focus on an attorney’s making injured parties whole before reinstatement.

3. Potential Impact

The decision seeds several doctrinal and practical consequences:

Expanded Sanction Gradient: Wisconsin now has explicit authority for suspensions between six months and revocation for patterned recidivists, guiding referees, prosecutors, and respondents in sanction advocacy.
Heightened Emphasis on Attitude: The Court’s reliance on Malloy’s lack of remorse foreshadows closer scrutiny of an attorney’s demeanour, cooperation, and acceptance of responsibility during proceedings.
Clearer Restitution Enforcement: By demanding proof of payment post-hearing, the Court signals an intolerance for symbolic restitution promises and may order similar verification in future cases.
Practical Reminder on Email Notice: Attorneys cannot insulate themselves by ignoring OLR emails; constructive knowledge will be presumed when explicit warnings are issued.
Guidance for Referees: The Court implicitly instructs referees to anchor sanction recommendations in comparative case law, even when frustration with a respondent is high.

Complex Concepts Simplified

Advanced Fee vs. Retainer: An “advanced fee” is money paid for future legal services that remains the client’s property until earned and must be held in a trust account unless the written engagement letter expressly permits alternative treatment under SCR 20:1.5(f) or (g). A “non-refundable retainer” is generally disallowed in Wisconsin.
Client Trust Account: A segregated bank account where client funds (e.g., settlements, advanced fees) must be deposited and safeguarded. Commingling with an attorney’s personal or business funds violates SCR 20:1.15.
SCR 22.26(2): Upon suspension, an attorney must cease practicing law immediately. Unauthorized practice during suspension constitutes a separate ethical breach.
Progressive Discipline: A principle under which sanctions increase with each additional instance of misconduct, especially when similar in nature.
Referee: An experienced lawyer or judge appointed to hear disciplinary cases, make factual findings, and recommend sanctions to the Supreme Court.

Conclusion

Office of Lawyer Regulation v. Malloy cements an important middle-path precedent in Wisconsin’s disciplinary scheme. Where prior decisions clustered around six-month suspensions or leapt to revocation, the Court has articulated a rationale for imposing mid-range suspensions when repetitive, attitude-laden misconduct threatens public confidence yet falls short of the gravest infractions. Key takeaways include:

The Court will depart upward from six-month norms when an attorney’s record, attitude, and pattern of violations demonstrate systemic disregard for professional rules.
Failure to cooperate with the OLR or to heed explicit suspension notices is itself potent aggravation.
Restitution is not merely ordered; proof of delivery may be required as a condition of reinstatement.
Referees should couple qualitative assessments with comparative case analysis when recommending discipline.

Collectively, the decision underscores that the privilege of practicing law carries enduring obligations of diligence, candour, and accountability—obligations the Court will enforce with escalating severity when necessary.