The Wisconsin Supreme Court issued their finding on Office of Lawyer Regulation v Frederick P Kessler. Their ruling was as follows:
"We adopt the referee's findings of fact. Although we disagree with the referee's conclusion of law that in order to constitute misconduct under SCR 20:8.4(c) a deceptive statement must be used to defraud another, we nevertheless agree with the referee that the OLR failed to satisfy its burden of proof that Attorney Kessler violated the rule. Consequently, we dismiss the proceeding."
It's interesting to note that Rep. Kessler's "deceptive statement" is not at issue here. It's just that the OLR could not satisfy it's burden of proof that the lie defrauded someone.
Take a look at the facts here, from the Supreme Court ruling.
1. Fred Kessler urged his wife Joan to get the "Schudson letter", which she did from law firms Chicago office.
2. At husband's memorial servicel, Fred Kessler asked Mary Moser if she'd be willing to file complaint to the Judicial Commission against his wifes opponent.
3. At subsequent lunch meeting Fred Kessler gave Mrs. Moser copy of Schudson letter, portions of the Judicial Code and a draft of the complaint to be filed.
4. When she question him on what to say if they asked how she got information, he told her to tell them she got it at "a cocktail party". This was done to conceal his involvement in the complaint. He claims to not even have told his wife - the person running for office.
5. This complaint was suppose to be confidential under Wis. Stat. § 757.93
6. On March 8, 2004 Spivak and Bice reported on the confidential complaint in the Milwaukee Journal Sentinel. (wonder how that was leaked?)
7. In the final weeks before the election, Joan Kessler's campaign ran radio and television ads referring to the complaint filed with the Judicial Commission against Judge Schudson. The ads stated the Judicial Commission was investigating whether Judge Schudson had violated the judicial code by "using his influence to try and help a convicted felon."
8. Joan Kessler won the election by 4,000 votes
Supreme Court findings:
Our application of the requirements of the rule, however, should not be interpreted to be an endorsement of Attorney Kessler's behavior.
The Hagedorn Campaign Statement.
"When career lawmakers willfully and arrogantly manipulate the system with dirty
political tricks to deceive those they are elected to serve, their moral failure calls for a
career change. Rep. Fred Kessler used legal and judicial friends to influence an
election and then encouraged them to falsify their testimony to hide his involvement.
This is wrong.
Earlier in this campaign Fred Kessler warned me that he knew ‘how to run a dirty
campaign'. This case further confirms his willingness to deceive and play dirty. The
people of Wisconsin deserve better. I hope to provide them that alternative to politics
as usual on November 2nd. “
We wonder if Rep. Kessler is willing to resort to political dirty tricks and shenanigans for his wifes Judgeship, what will he be willing to do to keep his own seat in the Wisconsin Assembly?
Further Reading and Links
OLR v Frederick P Kessler
OLR v Joan Kessler
Milwaukee Journal Sentinel
AP story via Chicago Tribune
Real Debate Wisconsin