The DA's letter to the Office of Lawyer Regulation

The Milwaukee Journal-Sentinel has obtained a copy of Calumet County District Attorney Kenneth Kratz's "self-reporting" letter to the Office of Lawyer Regulation.* It contains what I think could fairly be characterized as an amount of responsibility-shifting onto the victim.

For example:

We had two uneventful professional meetings in October, 2009, and S.V. [the victim in the felony domestic violence case the district attorney was then prosecuting] took the opportunity to "confer" with me on October 20th. During that meeting, I perceived some flirtation by S.V., and believed this single woman to be quite interesting.

Hard to say how that makes it any better. The "perceived flirtation" was in the DA's own mind and in any event, it should have been ignored and not acted upon. If it was overt — which I highly doubt — then it should have been immediately and unequivocally discouraged.

The reason she was single in the first place is because she was beaten and strangled by her ex-boyfriend, as Mr. Kratz was aware.

Considerably more remarkable from a strictly legal perspective is the manner in which Mr. Kratz portrays and construes the rule of professional conduct he (correctly, imho) identifies as implicated:

Although sexual harassment is usually a product of an employment relationship, this rule extends the prohibition to an attorney and other person (party, victim, witness) involved in the case.

Whether sexual harassment is usually a product of an employment relationship, even if that claim is empirically true, is irrelevant.

And the rule doesn't "extend" any prohibition to "an attorney and other person."** It's for attorneys solely and isn't extended from anyplace, although one might look elsewhere — to the Wisconsin criminal statutes, for example — for a definition of harassment.

Furthermore there's no suggestion in that particular rule that the victim of harassment needs to be involved in any case whatsoever. Professional activities are not limited to working on specific cases.

That a lawyer may be a "representative of clients" is but one of three roles described for lawyers in the rules of professional conduct. The others are as "an officer of the legal system and a public citizen."

What the rule in question reads is as follows:

It is professional misconduct for a lawyer to ... harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with the lawyer's professional activities.

"Legitimate advocacy respecting the foregoing factors" is exempted. But the so-called "sexting" was pretty clearly not legitimate advocacy.

Yet Mr. Kratz portrays — nay, cites — the rule thusly:

If a lawyer harasses another on the basis of sex in connection with the lawyer's professional activities, a violation could be present.

No — not "could be present." A violation is present. The rule doesn't say "may be" or "could be" or "might be." It says "is." Plainly.

I certainly hope the Office of Lawyer Regulation investigator did not take Mr. Kratz's self-serving — and textually incorrect — reiteration of the rule as Gospel. On a human level, I suppose it might be understandable that Mr. Kratz would seek to mitigate the circumstances of what he ill-advisedly got himself involved in.

But he, of all people, can't do that by misstating the rule of professional conduct that even he admits could be implicated.

He screwed up, and he knew it. As a prosecutor for 25 years there is arguably nobody better positioned in the entire State of Wisconsin to understand it than he, because that's what prosecutors try to do every day of their lives: get transgressors to admit they screwed up, according to some fit between their actions and some legal text.

One could not disagree more with the counselor interviewed in the WISN-12 teevee report aired last night. This is not a manifestation of a "lynch mob mentality." Nor is it an example of a victim of domestic violence simply being "uncomfortable with that lawyer."

The reported circumstances led the Wisconsin District Attorney's Association to condemn Mr. Kratz's behavior as "improper, disturbing, and repugnant" and to assert that he had "cast aspersions on our entire profession." And those are his colleagues, not enemies.

They said if Mr. Kratz did not voluntarily step aside, they would petition the governor to have him removed for cause. Which is what is happening now, and those hearings get underway on Monday.

By all reported accounts Mr. Kratz is determined to fight back, and has retained his own lawyer who is out there accusing at least two of Mr. Kratz's complainants as being "driven by financial opportunity."

That's his prerogative, of course. But it's not looking good. And now, with the release of Mr. Kratz's letter to the OLR, it's looking worse.

* Five pages; .pdf.
** The rules don't prohibit a person from harassing a lawyer.