SCOW’s stance on domestic violence splits court in OLR appeal
OLR v. Osman A Mirza, 2023AP2369-D, 4/15/26, per curiam decision of the Wisconsin Supreme Court (in its disciplinary capacity).
In a decision that demonstrates the overlap between the criminal justice and OLR disciplinary systems, SCOW’s decision to revoke this lawyer’s license for engaging in a pattern of domestic violence triggers a 4-3 split.
This disciplinary case may be of interest to our readers for two reasons.
First, it speaks to the complicated inquiry that can arise when criminal conduct is used as a basis for attorney discipline. In the criminal case, the State filed eleven criminal charges and alleged that Mirza had participated in an abusive course of conduct lasting roughly two years. (¶7). Mirza pleaded to the felony offense of stalking as well as the misdemeanor offense of criminal trespass. (¶8). Nine other charges were dismissed and read in. (Id.).
OLR later filed a disciplinary action and pleaded a single count of misconduct alleging that Mirza engaged “in a course of conduct” leading to his criminal convictions, thereby violating SCR 20:8.4(b). (¶10). The referee later concluded that the entire series of acts detailed in the amended criminal complaint, including conduct forming the basis for read-in offenses, had been proven. (¶14). OLR appealed the referee’s disciplinary recommendation and, ultimately, it became clear the parties did not agree as to what specific conduct had actually been proven below. (¶18). SCOW ultimately determined “that it was unclear what specific acts formed the basis of Attorney Mirza’s stalking conviction—the amended criminal complaint was unclear on this point, and there was no agreement between the parties on this point, either.” (¶19). It therefore remanded for further factfinding. (Id.).
In an OLR proceeding, the OLR need not re-prove that a person has committed a crime when that criminal conduct has already resulted in a conviction. However, read-in conduct does need to be independently proven by OLR. The issue here is that the offense at issue–stalking–covers a “course of conduct” which based on this criminal complaint, appears to overlap with (or subsume?) the read-in offenses.
Remand proceedings, however, failed to result in substantial clarity. (¶24). SCOW therefore plows forward with the “limited set of facts” presented. (¶26). It then proceeds to reject both OLR and the referee’s recommendation for a suspension, determining that Mirza’s acts of domestic abuse–which “demonstrated an intent to control an intimate partner through violence and intimidation, which is inherently selfish” merit revocation. (¶38).
Three justices, led by Justice Hagedorn, dissent, asserting that the Court may be treating this case differently because it involves acts of domestic abuse:
My concern is less with the specific length of the suspension than the apparent rationale for the decision. It appears the court may be treating this case differently than other comparable cases because it involved domestic abuse. But the rule we are applying requires us to tailor discipline to how the offense reflects on the fitness of the individual as a lawyer. Our past cases with this kind of sanction have involved a tie between the crime and the practice of law—for example, using one’s position as an attorney to take advantage of someone else. Thus, this sanction appears inconsistent with how we have dealt with cases in the past, raising concerns about whether this court is being evenhanded in its dispensing of attorney discipline.
To be sure, domestic abuse is a scourge worthy of condemnation. Mirza’s actions reflect poorly on his integrity, and a long suspension is appropriate. But I respectfully dissent from the court’s decision to revoke Mirza’s license altogether.
(¶44-45).
Thus two takeaways. First, for those who represent a lawyer charged with criminal conduct, the case again demonstrates how an unclear record in a criminal case can create complications in the OLR process. While Mirza may have benefited from keeping things vague when entering his plea to a broad charge that did not require him to admit more aggravated acts, that lack of specificity gums up the disciplinary process here.
We are also intrigued by the dissent, as it isn’t everyday that three justices of the Supreme Court think a convicted felon is being treated unfairly. Chief Justice Karofsky hasn’t been shy about using her position to advocate strenuously on behalf of domestic violence victims, including a recent dissent where she passionately responded to many persistent questions like “Why does she stay?” in discussing what she perceives as a mistreatment of victims in our criminal justice system. In that context, Justice Hagedorn’s claim that the Court’s focus on domestic violence leads it to apply the law in a non-“evenhanded” manner is certainly a notable criticism, a potential fracture that criminal practitioners should properly note (especially as Justice Hagedorn’s status as the “swing” vote fades even further given the Court’s further realignment).