September 22, 2010

On appearing to involve a possible misconduct

This is from a letter the Office of Lawyer Regulation sent on March 5, 2010, to Stephanie Van Groll. Ms. Van Groll was the victim of felony domestic violence which — I think it's fairly safe to say — was used to the advantage of the prosecutor in the case when he sent her 30 text messages over three days of a strongly sexual and harassing nature.

It was released yesterday by the Wisconsin Department of Justice.*
Although District Attorney Kratz's communication with you was inappropriate, it did not appear to involve possible professional misconduct.
First of all that would be communications, plural. One reason that is important is because, despite the press's concentration on certain of the more "racy" — that's a reporter's term — messages, there are two clearly distinguishable types of messages contained among the lot.

One is of the "racy" type. But at least equally as disturbing are the ones demonstrating the prosecutor's impatience with the victim's failure to respond immediately to the prosecutor's sexual overtures. Those of themselves are a compelling showing of harassment, which the Supreme Court rules of professional conduct expressly addresses.

Secondly, this: "[I]t did not appear to involve possible professional misconduct." Now, I understand the certain species of legalese whose author seeks to couch language in studied vagueness and generality and I try to be mindful of the occasions upon which it's warranted.

But this cannot be one of them.

Peeling away at these several layers of attenuation from a substantive misconduct violation reveals that we have (1) behavior that is misconduct; (2) behavior that is possible misconduct; (3) behavior that involves possible misconduct; (4) behavior that appears to involve possible misconduct; and ultimately (5) behavior that does not even appear to involve possible misconduct.

And we are expected to accept that Mr. Kratz's behavior falls within the latter sphere. With respect, that is an indefensible adjudication.

If it isn't, then I would sure like to see the defense. Perhaps we will.

At the risk of sounding glib, may I say that I don't know whether there are specific standards of conduct that govern the activities of the Office of Lawyer Regulation but if there were, this investigator's statement just might appear to possibly involve contravening them.

The professional associations of attorneys are continuously concerned with improving the perception among the public of the members of that profession and this sort of thing really does nothing to help.

eta: Neither does this, but for entirely separate reasons:
The attorney for prosecutor Ken Kratz says two of the four women who accuse him of being sexually suggestive are "driven by financial opportunity."
Mr. Kratz is certainly entitled to the most vigorous defense against any and all actions taken against him. In terms of the public perception, however, that one is likely to elicit very little sympathy.

* Pages four and five of five; .pdf.


Free Lunch said...

Cynthia Schally appears to be incapable of doing the job that she was hired to do.

The question is whether she really had no idea what she was doing or was persuaded to sign off on the whitewash by someone senior to her in the OLR.

Grant said...

I may be reading too much into it, but there's something very off-putting about the letter's tone. It seems to say, "Get over it, honey. Move on."

Particularly the bit about Kratz "demonstrating his remorse." That seems to me more of a positive defense of Kratz' character than a simple factual finding.

illusory tenant said...

That is correct. In the criminal context at least, remorse is a factor for consideration at sentencing, but not until then.

krshorewood said...

Kratz brings a whole new wrinkle to dating.