Wisconsin: Revocation Is Warranted for Forcible Sexual Misconduct Exploiting a Lawyer’s Status—Discipline Turns on Conduct, Not Charge Level

1. Introduction

Case: Office of Lawyer Regulation v. Jerome J. Babiak (2026 WI 17)
Court: Supreme Court of Wisconsin
Date: May 29, 2026

This attorney-discipline matter arose after Jerome J. Babiak, a Wisconsin lawyer admitted in 2017, pled guilty to two misdemeanor counts of fourth-degree sexual assault. The Office of Lawyer Regulation (OLR) charged him with professional misconduct on two theories: (1) commission of a criminal act reflecting adversely on fitness to practice (SCR 20:8.4(b)), and (2) violation of the Attorney’s Oath requirement to “abstain from all offensive personality” (SCR 40.15), enforceable as misconduct (SCR 20:8.4(g)).

The referee recommended a four-year suspension made retroactive to the date of the court’s prior summary suspension under SCR 22.20. The OLR sought revocation. With no appeal filed, the supreme court reviewed the matter under SCR 22.17(2) and ultimately increased the discipline to revocation, also retroactive to the summary suspension date.

Key issues included: (i) how the court evaluates criminal misconduct for SCR 20:8.4(b) purposes (charge/conviction level versus underlying conduct), (ii) how the “offensive personality” oath provision applies where the victim is not the lawyer’s client, and (iii) what sanction is necessary to protect the public and the integrity of the profession in cases of sexual misconduct—particularly where one assault occurred in a courthouse and where the lawyer used his position and access to legal information as leverage.

2. Summary of the Opinion

The court adopted the referee’s factual findings (based on the parties’ stipulation incorporating the criminal complaint) and agreed that Babiak committed misconduct under:

  • SCR 20:8.4(b) (criminal conduct reflecting adversely on fitness), based on two forceful, penetrative sexual assaults; and
  • SCR 20:8.4(g) and SCR 40.15 (violating the attorney’s oath), based on sexually aggressive communications (including “plenty of penis pics”) directed to the victim in a context of power imbalance.

The court rejected the referee’s recommended four-year suspension and held that the misconduct warranted revocation, effective January 26, 2024 (the date of the SCR 22.20 summary suspension). It also imposed full costs of $13,224.55 and ordered compliance with SCR 22.26. No restitution was sought or ordered.

3. Analysis

3.1. Precedents Cited

Sanction authority, review standards, and the court’s role

  • In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747
    Cited for the standards of review: factual findings are affirmed unless clearly erroneous; conclusions of law reviewed de novo. This frames how the court can accept a stipulated factual record while independently assessing rule violations and sanction.
  • In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686
    Cited to emphasize the supreme court’s plenary authority to impose the sanction it deems fit, regardless of the referee’s recommendation—crucial here because the court escalated discipline from suspension to revocation.
  • In re Disciplinary Proceedings Against Siderits, 2013 WI 2, ¶33, 345 Wis. 2d 89, 824 N.W.2d 812
    Quoted for the proposition that attorney-discipline sanctioning “is not an exact science.” The court used this to reject an overly mechanical “case comparison” approach and to clarify that revocation decisions are not governed by a rigid “floor” set by prior revocation cases.

Evaluating criminal misconduct under SCR 20:8.4(b): focus on conduct

  • In re Disciplinary Proceedings Against Ritland, 2021 WI 36, ¶27, 396 Wis. 2d 509, 957 N.W.2d 540
    The court relied on Ritland for the principle that SCR 20:8.4(b) analysis focuses on the “nature of the conduct” stipulated/established in the disciplinary proceeding, not merely the label or level of the criminal charges. This was pivotal because Babiak’s convictions were misdemeanors, yet the court treated the underlying acts as “forceful, penetrative sexual assaults,” which drove both the misconduct analysis and the sanction.
  • In re Disciplinary Proceeding Against Johns, 2014 WI 32, ¶38, 353 Wis. 2d 746, 847 N.W.2d 179
    Quoted for the standard that certain behavior is so revealing of character defects and so undermines public confidence that it “necessarily reflects adversely” on fitness. The court used Johns to underscore that Babiak’s conduct meets the SCR 20:8.4(b) fitness-impact threshold.

“Offensive personality” and sexually suggestive communications

  • In re Disciplinary Proceedings Against Kratz, 2014 WI 31, ¶¶28, 30, 32, 46, 353 Wis. 2d 696, 851 N.W.2d 219
    The court analogized to Kratz, where a prosecutor’s sexually suggestive communications with a domestic abuse victim and lewd statements constituted “offensive personality.” Kratz supplied doctrinal support that sexually charged messaging—especially in contexts of vulnerability or power imbalance—can violate SCR 40.15 as enforced via SCR 20:8.4(g).
  • In re Disciplinary Proceedings Against Beaver, 181 Wis. 2d 12, 22, 510 N.W.2d 129, 133 (1994)
    Cited for the limiting principle that an “offensive personality” claim must relate to conduct that reflects adversely on fitness as a lawyer. The court invoked Beaver to link Babiak’s sexually aggressive communications not to mere rudeness, but to professional unfitness grounded in exploitation of an unequal power dynamic.

Revocation comparisons and the “no floor” clarification

  • In re Disciplinary Proceedings Against Meyer, 2022 WI 39, 401 Wis. 2d 732, 975 N.W.2d 229
    Although the referee used Meyer to distinguish and justify suspension, the court treated Meyer as the most instructive analog for sanctioning. The key borrowed reasoning was Meyer’s description of conduct showing “a complete and utter disregard for his obligations as an attorney” and the conclusion that “[n]o sanction short of revocation” would protect the public, deter others, and impress upon the lawyer the gravity of misconduct. The court applied that rationale to Babiak’s sexual assaults (including in a courthouse) and his exploitative communications.
  • In re Disciplinary Proceedings Against Dudas, 2021 WI 5, 395 Wis. 2d 345, 953 N.W.2d 870
    The referee cited Dudas as a more extreme revocation case (numerous felony convictions including first-degree sexual assault). The supreme court acknowledged factual differences but clarified that Dudas and Meyer do not establish a minimum severity “threshold” for revocation; rather, they are analogies in a non-mathematical sanctioning inquiry.
  • In re Dudas, 395 Wis. 2d 345, ¶14
    Cited for the practice of making final discipline (here, revocation) effective as of the date of an earlier SCR 22.20 summary suspension—important for how revocation commencement dates are set in serious-crime discipline matters.
  • In re Disciplinary Proceedings Against Ritland, 396 Wis. 2d 509, ¶¶37-38
    Cited for the proposition that Wisconsin caselaw has made it “exceedingly clear that attorneys who engage in sexual misconduct do so at their professional peril.” The court used this to emphasize notice and deterrence: Babiak’s behavior occurred against a clear disciplinary backdrop warning lawyers about severe consequences.

Concurrence on “revocation” versus permanent revocation

  • In re Disciplinary Proceedings Against Moodie, 2020 WI 39, 391 Wis. 2d 196, 942 N.W.2d 302 (Ziegler, J., dissenting)
    Justice Ziegler’s concurrence referenced her prior writing to highlight a recurring systemic point: Wisconsin “revocation” is not necessarily permanent because reinstatement may be sought after five years under SCR 22.29(2).
  • In the Matter of Amending Supreme Court Rules Pertaining to Permanent Revocation of a License to Practice Law in Attorney Disciplinary Proceedings and S. Ct. Order 19-10 (issued Dec. 18, 2019) (Ziegler, J., dissenting)
    These references underscore the concurrence’s concern that terminology may mislead the public and that rare cases might warrant true permanent revocation—though that rule change was not adopted.

3.2. Legal Reasoning

(a) Misconduct under SCR 20:8.4(b): the court looks past the misdemeanor label

A central doctrinal move in the opinion is the court’s insistence that SCR 20:8.4(b) turns on the nature of the underlying conduct, not the prosecutor’s charging choice or the formal grade of conviction. By adopting the stipulated criminal complaint facts as the disciplinary facts, the court treated the matter as involving two forceful, penetrative sexual assaults, two weeks apart, one committed in a courthouse conference room immediately before appearing in court as counsel.

This approach minimizes the risk of under-disciplining where criminal case outcomes (e.g., plea bargaining, charge reductions) do not fully capture professional-risk realities. The court explicitly noted it did not know why misdemeanors were charged, but it did not allow that uncertainty to dilute the disciplinary assessment.

(b) Misconduct under SCR 40.15 “offensive personality”: narrowed theory, power imbalance, and non-client victim

The court criticized Count 2 as “not particularly well pled,” including ambiguity about what “physical sexual contact” encompassed. Importantly, rather than dismissing the count, the court narrowed its consideration to the sexually aggressive communications (phone/text/Snapchat).

The court’s reasoning emphasizes that even when a victim is not a client, a lawyer’s status can create an unequal balance of power. Here, the victim sought information relevant to her custody dispute, and Babiak—counsel for her ex-boyfriend—had access to case information and legal sophistication she valued. The court framed the sexually aggressive messaging (including unsolicited explicit photos) as exploitation of that imbalance, demonstrating lack of “professional restraint” and reflecting adversely on fitness, fitting within Kratz and the fitness limitation described in Beaver.

(c) Sanction: why revocation, not suspension

The court’s sanction analysis rests on professional protection and institutional integrity. It explicitly rejected the idea that prior revocation cases create a “floor” for revocation-worthy misconduct. Instead, it treated Meyer as a guiding analogy for the principle that some conduct reflects such profound nonconformity with professional standards that only revocation sufficiently:

  • protects the public,
  • deters other lawyers, and
  • impresses upon the respondent the seriousness of the misconduct.

Two features made the case especially sanction-aggravating in the court’s telling:

  • Location and symbolism: committing a forcible sexual assault in a courthouse was treated as an affront not just to criminal law but to the “decorum, dignity, and sanctity” of the justice setting and the safety expectations within it.
  • Use of lawyer-derived power: the court characterized Babiak as using “the power and authority derived from his law license” for personal ends—through information leverage and professional position—tying the misconduct directly to professional unfitness rather than treating it as purely private wrongdoing.

(d) Mitigation: limits on what counts

The court acknowledged mitigation (no prior discipline, cooperation, counseling, remorse, and criminal penalties) but still found the misconduct “too egregious” for anything short of revocation. Notably, it refused to credit embarrassment and marital problems as mitigation, calling them “natural consequences” rather than “other penalties or sanctions,” citing the ABA Standards discussion referenced in footnote 4.

(e) Effective date and costs

Consistent with the practice referenced via In re Dudas, the court backdated revocation to the SCR 22.20 summary suspension effective date (January 26, 2024). It also applied the general policy of imposing full costs under SCR 22.24(1m).

3.3. Impact

The opinion’s practical and precedential impact is likely to be felt in at least four ways:

  1. Conduct-over-conviction framing is reinforced. By explicitly focusing on the underlying stipulated facts rather than misdemeanor labels, the court strengthens OLR’s ability to seek severe sanctions even where the criminal case ends in reduced charges.
  2. “Offensive personality” remains a live tool for sexualized communications. The court confirms that sexually aggressive messaging can violate SCR 40.15/SCR 20:8.4(g), including where the recipient is not a client, so long as the conduct reflects adversely on fitness and involves professional-context power imbalance.
  3. Revocation is positioned as appropriate for egregious sexual misconduct even without sprawling multi-count felonies. The court’s rejection of a “revocation floor” means future respondents may find it harder to argue that revocation is reserved only for the most extreme criminal-discipline records.
  4. Courthouse-related misconduct is treated as uniquely corrosive. The court’s emphasis on the courthouse assault suggests heightened sensitivity to acts that undermine safety and legitimacy within justice institutions.

Justice Ziegler’s concurrence may also influence public understanding and future rule debates by underscoring that “revocation” in Wisconsin still permits a reinstatement petition after five years (SCR 22.29(2)), raising transparency concerns in public-facing discipline terminology.

4. Complex Concepts Simplified

SCR 22.20 “summary suspension”
A temporary suspension imposed quickly after certain serious-crime convictions, designed to protect the public while discipline proceeds. Here, it began January 26, 2024 and later served as the effective date for revocation.
SCR 20:8.4(b)
A rule making it misconduct to commit a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness. The court assessed fitness based on what Babiak did (as stipulated), not merely what he was convicted of.
Attorney’s Oath “abstain from all offensive personality” (SCR 40.15) enforced via SCR 20:8.4(g)
An oath-based professionalism standard that is discipline-enforceable. It is not about mere impoliteness; it targets conduct showing professional unfitness—here, sexually aggressive messages in a lawyer-influenced power context.
Revocation vs. suspension
Suspension is time-limited and ends automatically (subject to conditions). Revocation removes the license, and the lawyer must later petition for reinstatement. The concurrence notes that in Wisconsin reinstatement may be sought after five years (SCR 22.29(2)), so “revocation” is not necessarily permanent.
Aggravating vs. mitigating factors
Aggravating factors increase sanction severity (pattern of misconduct, vulnerable victim, selfish motive, abuse of position). Mitigating factors may reduce severity (no prior discipline, remorse, cooperation). The court held certain consequences (embarrassment, marital strain) are not mitigation but natural fallout.

5. Conclusion

Office of Lawyer Regulation v. Jerome J. Babiak cements a stringent Wisconsin disciplinary message: when an attorney’s sexual misconduct is forceful, exploitative, and intertwined with the lawyer’s professional position—especially when committed in a courthouse—revocation may be required even if the criminal convictions are misdemeanors. The decision reinforces that discipline evaluates the underlying conduct, not the prosecutor’s charging choices, and it confirms that sexually aggressive communications can violate the Attorney’s Oath “offensive personality” provision where they reflect adversely on fitness. The concurrence adds an institutional transparency critique, noting that “revocation” in Wisconsin still permits a reinstatement petition after five years, potentially inviting renewed debate about permanent revocation in rare cases.