|Ken Kratz, an ethics-free attorney fit for the movies. Kratz's |
unprofessional behavior didn't stop after he sexually harassed an
abuse victim in 2009, (Long, She Knows.com). Image Netflix
On October 22, 2009, Attorney Kratz sent S.V.G. eight more messages, telling her that she was "beautiful," "pretty," that "I'm the atty. I have the $350,000 house. I have the 6 figure career. You may be the tall, young, hot nymph, but I am the prize! Start convincing," and that "I would not expect you to be the other woman. I would want you to be so hot and treat me so well that you'd be THE woman. R U that good?"
Anything that Kratz says today should considered in light of who he is, an ethics-free attorney so bad even the Office of Lawyer Regulation recommended a suspension of his license to practice law and a $ five-figure fine:
The Special Prosecutor Ken Kratz (former Calumet County (WI) DA) who was part of the unsavory bunch in law enforcement who railroaded Steven Avery and Brendan Dassey is a piece of work.
Below is an excerpt from the June 6, 2014 opinion of the Supreme Court of Wisconsin (Wisconsin Office of Lawyer Regulation, Complainant): "In the Matter of Disciplinary Proceedings Against Kenneth R. Kratz, Attorney at Law." The opinion reads in part (with emphasis added):
"¶5 The disciplinary complaint before us, filed by the Office of Lawyer Regulation (OLR) on November 30, 2011,1 involves allegations that Attorney Kratz sent inappropriate text messages to a domestic abuse crime victim, S.V.G., while serving as the prosecutor of the perpetrator of the domestic abuse crime. The complaint further alleges that Attorney Kratz made inappropriate verbal statements to two social workers with the Calumet County Human Services Department, S.S. and R.H. This course of behavior served as the basis of six counts of misconduct, to which Attorney Kratz has pled no contest.
¶6 The OLR's complaint included an additional five counts of misconduct. One of those counts concerned Attorney Kratz's text messages to S.V.G.; the remaining four counts alleged that Attorney Kratz engaged in inappropriate behavior toward two additional women, J.W. and M.R. The OLR moved for, and the referee granted, the dismissal of three of these five counts on June 14, 2012, a few days before the start of the disciplinary hearing on June 19, 2012. The OLR moved for, and the referee granted, the dismissal of the other two counts at the outset of the disciplinary hearing. Attorney Kratz entered no contest pleas to the remaining six counts.
¶7 Of the six counts of misconduct to which Attorney Kratz pled no contest, three counts concern S.V.G. According to the OLR's complaint, on August 12, 2009, Attorney Kratz, while serving as Calumet County District Attorney, filed a felony criminal complaint against S.R.K. of Kaukauna, Wisconsin. According to the complaint, S.R.K. beat and strangled S.V.G., a former live-in partner and mother of S.R.K.'s child. The complaint charged one felony count of strangulation and suffocation (pursuant to Wis. Stat. § 940.235(1)) and one count of disorderly conduct (pursuant to Wis. Stat. § 947.01).
¶8 Shortly after the preliminary hearing in this matter, S.V.G. met with Attorney Kratz alone in a conference room at the district attorney's office. S.V.G. requested the meeting, exercising her right to consult with the district attorney "concerning the disposition of a case involving a crime of which he or she was a victim . . . ." See Wis. Stat. § 950.04(1v)(zm) (2009-10).
¶9 During the meeting, S.V.G. volunteered personal information to Attorney Kratz, stating that she did not have a current boyfriend, that she suffered from low self-esteem, that she lived with her mother, and that she was struggling as a single mother.
¶10 According to S.V.G., she understood during her meeting with Attorney Kratz that he would be prosecuting S.R.K. S.V.G. also relayed details of her relationship with S.R.K., and indicated that S.R.K. had previously abused her, including beatings and strangulation. Attorney Kratz asked S.V.G. if she objected to reducing the felony charge to a misdemeanor. S.V.G. objected to the suggestion. At the conclusion of the meeting, Attorney Kratz and S.V.G. exchanged cell phone numbers.
¶11 After S.V.G. left Attorney Kratz's office, Attorney Kratz began texting S.V.G. from his personal cell phone. Attorney Kratz sent her three messages on October 20, 2009, the same day they met, his last message stating, "I wish you weren't one of this office[']s clients. You'd be a cool person to know!"
¶12 On October 21, 2009, Attorney Kratz sent S.V.G. 19 messages, including asking her: "Are you the kind of girl that likes secret contact with an older married elected DA . . . the riskier the better? Or do you want to stop right know [sic] before any issues?"
¶13 On October 22, 2009, Attorney Kratz sent S.V.G. eight more messages, telling her that she was "beautiful," "pretty," that "I'm the atty. I have the $350,000 house. I have the 6 figure career. You may be the tall, young, hot nymph, but I am the prize! Start convincing," and that "I would not expect you to be the other woman. I would want you to be so hot and treat me so well that you'd be THE woman. R U that good?"
¶14 According to S.V.G., Attorney Kratz's personal overtures were unwelcome and offensive, and she was concerned that if she failed to respond to Attorney Kratz, he might take action with respect to the case against S.R.K. that could potentially adversely affect S.V.G.
¶15 On October 22, 2009, S.V.G. reported Attorney Kratz's text messages to the Kaukauna Police Department.
¶16 After photographing the text messages on S.V.G.'s telephone and taking S.V.G.'s statement, the Kaukauna Police Department referred the matter to the State of Wisconsin Department of Justice (DOJ).
¶17 After reviewing the text messages and the report of the Kaukauna Police Department, the DOJ determined that there had not been any criminal activity. Nonetheless, DOJ representatives strongly suggested to Attorney Kratz that he step aside from the prosecution of S.R.K. and self-report his conduct to the OLR.
¶18 Attorney Kratz facilitated the appointment of a special prosecutor to take over the S.R.K. case. Attorney Kratz also agreed to resign as chairman of the Wisconsin Crime Victims' Rights Board.
¶19 In a December 4, 2009 letter to the OLR that included the transcribed messages to and from S.V.G., Attorney Kratz admitted that he sought a personal "friendship" with S.V.G. He expressed regret and embarrassment for his conduct and admitted that he had violated S.V.G.'s trust. Attorney Kratz also noted that he was undergoing therapy "to answer why a career prosecutor, with a spotless record and sterling reputation, would risk his professional esteem on such a disrespectful communication with a crime victim."
¶20 On September 15, 2010, the Associated Press published a story regarding Attorney Kratz's text messages to S.V.G. Attorney Kratz issued a statement admitting that he sent the texts and was embarrassed at his lack of judgment.
¶21 On September 17, 2010, the executive committee of the Wisconsin District Attorneys Association issued a letter to Attorney Kratz calling for his resignation.
¶22 After then-Governor James Doyle initiated removal proceedings against him pursuant to Chapter 17 of the Wisconsin Statutes, Attorney Kratz resigned his position as Calumet County District Attorney on October 4, 2010.
¶23 Two counts of the OLR's complaint involve Attorney Kratz's verbal statements to S.S., a social worker with the Calumet County Human Services Department.
¶24 In October of 2009, Attorney Kratz prosecuted a termination of parental rights case in which S.S. was a witness. Prior to testifying, S.S. commented to Attorney Kratz that she was nervous about testifying. In response to S.S.'s concerns, Attorney Kratz stated to S.S. that he "won't cum in your mouth." Later that day Attorney Kratz remarked to S.S. that he wanted the trial to be over because he was leaving on a trip to Las Vegas, where he could have "big boobed women serve me drinks."
¶25 One count of the OLR's complaint involves Attorney Kratz's verbal statement to R.H., also a social worker with the Calumet County Human Services Department. During a court proceeding, Attorney Kratz commented in court to R.H. that a reporter had "big beautiful breasts."
¶26 On the first day of the scheduled disciplinary hearing in this matter, Attorney Kratz entered pleas of no contest to six counts of misconduct stemming from his behavior toward S.V.G., S.S., and R.H. The referee found that an adequate factual basis existed on each of the six counts, and accepted the no contest pleas.
¶27 The referee concluded that, by seeking a personal relationship with S.V.G., a domestic abuse crime victim and witness, while serving as the prosecutor of the perpetrator of the domestic abuse crime, thereby creating a significant risk that the representation of the State of Wisconsin would be materially limited by his own personal interests, Attorney Kratz engaged in a concurrent conflict of interest in violation of SCR 20:1.7(a).2 ...
SCR 20:1.7(a) Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
¶28 The referee also concluded that, by seeking a personal relationship with S.V.G., a domestic abuse crime victim and witness, and by sending her text messages carrying sexual overtones, while prosecuting the perpetrator of the domestic abuse crime, Attorney Kratz engaged in offensive personality, in violation of SCR 20:8.4(g)3 and SCR 40.15.4
¶29 The referee also concluded that, by sending deliberate, unwelcome, and unsolicited sexually suggestive text messages to S.V.G., a domestic abuse crime victim and witness, while prosecuting the perpetrator of the domestic abuse crime,
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
3 SCR 20:8.4(g) states it is professional misconduct for a lawyer to "violate the attorney's oath; . . . ."
4 SCR 40.15, "Attorney's oath," states, in pertinent part:
The oath or affirmation to be taken to qualify for admission to the practice of law shall be in substantially the following form:
. . . .
I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; . . . .
Attorney Kratz harassed S.V.G. on the basis of her sex, in violation of SCR 20:8.4(i).2
¶30 The referee also concluded that, by stating to S.S., a Calumet County social worker and witness in a termination of parental rights case, that he "won't cum in your mouth" and that he wished the trial to be over because he was traveling to Las Vegas where he could have "big boobed women serve me drinks," and by making these comments while acting in his capacity as Calumet County District Attorney, Attorney Kratz engaged in offensive personality in violation of SCR 20:8.4(g) and SCR 40.15.
¶31 The referee also concluded that, by stating to S.S., a Calumet County social worker and witness in a termination of parental rights case, that he "won't cum in your mouth" and that he wished the trial to be over because he was traveling to Las Vegas where he could have "big boobed women serve me drinks," and by making these comments while acting in his capacity as Calumet County District Attorney, Attorney Kratz harassed S.S. on the basis of her sex, in violation of SCR 20:8.4(i).
¶32 Finally, the referee concluded that, by making a comment during a court proceeding to R.H., a Calumet County social worker, that a reporter had "big beautiful breasts," and by making this comment while acting in his capacity as Calumet County District Attorney, Attorney Kratz engaged in offensive personality, in violation of SCR 20:8.4(g) and SCR 40.15.
¶33 At the June 19, 2012 disciplinary hearing, the referee heard testimony and received exhibits on the issue of the appropriate discipline. The referee also received post-hearing briefing on the subject.
¶34 In its post-hearing brief, the OLR argued that
Attorney Kratz's license should be suspended for six months. The OLR emphasized that Attorney Kratz's conduct involved multiple women, all of them in vulnerable or subordinate positions. The OLR argued that Attorney Kratz did not intend to remove himself as prosecutor in the S.V.G. matter until DOJ officials asked him to do so after S.V.G. reported his actions to the police. The OLR also argued that Attorney Kratz refused to take responsibility for his offensive statements to S.S. and R.H. The OLR further argued that because Attorney Kratz blamed his misconduct on various addictions yet offered no competent medical testimony that he had recovered from his addictions, a six-month suspension would be appropriate given that it would require him to petition the court for reinstatement under
¶35 In his post-hearing brief, Attorney Kratz argued that a public reprimand was warranted. In support of his argument that a license suspension was not warranted, Attorney Kratz downplayed the seriousness of his misconduct toward S.V.G., S.S., and R.H.
¶36 Regarding his texts to S.V.G., Attorney Kratz admitted they constituted wrongful behavior, but "disagree[d] with the OLR's characterization that the messages contained 'sexual overtones' (as no message included one single sexually explicit term, nor was any sexual conduct or sex act ever suggested)."
Attorney Kratz also described his conduct upon learning that S.V.G. objected to his texts as praiseworthy. He wrote:
Shape[U]pon even the hint of a conflict of interest, or reports of unsettling reaction by [S.V.G.], immediate steps were taken to eliminate even the perception of continued violation; timely self-report to the OLR for imposition of sanction (if required); and aggressive steps to ensure this stupidity never, ever repeated itself. That is the attorney response that this Court should praise, rather than punish.
¶37 Regarding his verbal comments to social worker S.S. that he "won't cum in [her] mouth" and looked forward to having "big boobed women serve [him] drinks," Attorney Kratz wrote that he "recognized the disrespectful phrase used, and apologized to the Social Worker at the first opportunity."
Shape¶38 Regarding his statement to social worker R.H. that a "reporter"4 had "big beautiful breasts," Attorney Kratz wrote in his post-hearing brief that this comment "never occurred." Attorney Kratz argued that "the reporter referred to, although admittedly beautiful, does NOT have large breasts . . . this single important factor has been relied upon by Respondent to conclude the comment never was made, or at the very least, [was] misinterpreted by [R.H.]." Attorney Kratz conceded, however, that "given the posture of this case, the tribunal is free to include the facts of the [R.H.] comment, and provide it such weight in the sanctions recommendations as deemed necessary."
¶39 As a mitigating factor, Attorney Kratz wrote in his post-hearing brief that at the time of the events in question, he "suffered from the combination of Sexually Compulsive Disorder (SCD) and prescription drug dependence"——conditions for which he has sought treatment. He also claimed that he wanted
"to settle the case" early in the disciplinary process, but the OLR refused to do so, in part because it is "apparently more concerned with how 'they look' in the zealous pursuit of an attorney 'pelt,' rather than what result 'should' be reached." ¶40 On July 30, 2012, the referee filed a report and recommendation. In considering the appropriate discipline, the referee weighed various aggravating and mitigating factors.
¶41 The referee noted as aggravating factors that Attorney Kratz acted with a selfish motive; that S.V.G. was a vulnerable victim; and that Attorney Kratz's misconduct was particularly inexcusable in light of his considerable legal experience and his previous leadership on issues pertaining to victims' rights.
¶42 The referee assigned neutral weight to
Attorney Kratz's self-report to the OLR of his misconduct involving S.V.G. The referee wrote that "at the time of the respondent's self-report, the cat was already out of the bag, so to speak. S.V.G. had gone to the police, the police had contacted the Wisconsin Department of Justice, and that agency urged the respondent to self-report to the OLR." The referee found that these circumstances "significantly undercut any claim of virtuousness by self-reporting."
¶43 The referee noted a variety of mitigating factors, which, in summary fashion, are as follows: Attorney Kratz has no prior disciplinary history; he apologized to S.S. for his vulgar comment shortly after making it; he has never attempted to justify or defend his conduct toward S.V.G.; he cooperated with the disciplinary proceedings; he previously enjoyed a good professional reputation and engaged in significant volunteer activities within the legal profession; he has been diagnosed with and sought treatment for narcissistic personality disorder and sexual addiction; he was abusing the sleeping aid Ambien, the painkiller Vicodin, and the anti-anxiety drug Xanax at the time of the misconduct; he subsequently sought treatment for his substance abuse issues; he voluntarily obtained a mentor attorney through the State Bar's Wisconsin Lawyer Assistance
Program (WisLAP), who reported being impressed with Attorney Kratz's character and commitment to recovery; and he had suffered substantial collateral consequences from his misconduct, including considerable negative publicity, the loss of his district attorney position, and significant financial difficulties.
¶44 After weighing these aggravating and mitigating factors, the referee recommended that Attorney Kratz's license to practice law should be suspended for a period of four months. In support of his recommendation for a lighter sanction than that proposed by the OLR, the referee emphasized the number and weight of the mitigating factors in this case. The referee also suggested that a four-month suspension was consistent with the discipline imposed in two cases that he believed were particularly analogous to this case. In re Disciplinary Proceedings Against Beatse, 2006 WI 115, 297 Wis. 2d 292, 722 N.W.2d 385 (assistant district attorney publicly reprimanded for having spent numerous hours viewing pornography on his work computer, lied about the source of the pornography and the extent of his viewing, used the state's e-mail system to send and receive sexually explicit e-mail messages, and made inappropriate comments to a county employee in a work environment); In re Disciplinary Proceedings Against Ridgeway, 158 Wis. 2d 452, 462 N.W.2d 671 (1990) (assistant state public defender suspended for six months for having initiated and engaged in sexual contact with a client he was representing as a public defender, and for having encouraged that client to violate the terms of her probation by providing her with alcoholic beverages).
¶45 No appeal has been filed, so this matter is submitted to the court pursuant to SCR 22.17(2).5 We affirm a referee's findings of fact unless they are found to be clearly erroneous.
In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 2d 71, 740 N.W.2d 125. We review the referee's conclusions of law on a de novo basis. Id. We determine the appropriate level of discipline given the particular facts of each case, independent of the referee's recommendation, but benefiting from it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶46 After reviewing the record, we conclude that the referee's factual findings are supported by the record, and we adopt them. We also adopt the referee's conclusion that Attorney Kratz committed the six counts of misconduct described above.
¶47 With respect to the appropriate level of discipline, we agree with the referee that a four-month suspension is necessary discipline for Attorney Kratz's misconduct in this matter. Attorney Kratz's conduct toward S.V.G. was appalling. Through a series of wheedling text messages, Attorney Kratz attempted to convince S.V.G., a domestic abuse crime victim and witness, to enter into a sexual relationship with him while he was prosecuting the perpetrator of the domestic crime. S.V.G. felt leveraged by Attorney Kratz's sexual entreaties; she feared that if she failed to respond to him, he might take action in her domestic abuse case that could potentially adversely affect her. This was exploitative behavior, harassing behavior, and a crass placement of his personal interests above those of his client, the State of Wisconsin. Attorney Kratz's comments to social worker S.S. while she served as a witness in one of his cases——that he "won't cum in [her] mouth" and looked forward to "big boobed women" serving him drinks in Las Vegas——crossed the line separating the unprofessional from the acutely offensive and harassing. Attorney Kratz's statement to social worker R.H. during a court proceeding, in which he voiced approval of a reporter's "big beautiful breasts," was sufficiently boorish as to constitute misconduct. In short, whatever his qualities and accomplishments as a lawyer, Attorney Kratz proved himself during the period in question to be sanctionably sophomoric.
¶48 Attorney Kratz has rationalized his poor behavior by confessing to various addictions: to Ambien, to Vicodin, to Xanax, and to sex, though he fails to point to either medical records or expert medical testimony that would explain the exact nature and severity of his conditions, or how they may have affected his ability to conform his behavior to ethical rules. But regardless of how we view Attorney Kratz's behavior——as an involuntary byproduct of addiction, or as a willful blindness to professional standards——the ugly picture painted by the record remains the same. The recommended four-month suspension is deserved.6
¶49 We turn next to the issue of costs. The OLR filed its statement of costs on August 20, 2012, listing $23,904.10 in costs. Supreme Court Rule 22.24(2) required Attorney Kratz to file any objection to the OLR's statement of costs within 21 days after service——or on or about September 10, 2012. On November 14, 2012——over two months past the deadline—— Attorney Kratz filed an objection to the statement of costs, along with a motion asking the court to accept his late filing.
Attorney Kratz offered no explanation for the lateness of his filing.
¶50 We reject Attorney Kratz's unexcused late filing. Our deadlines are not mere suggestions. Filing documents with this court over two months late with no semblance of a reasonable excuse has its consequences. As the Seventh Circuit has explained:
We live in a world of deadlines. If we're late for the start of the game or the movie, or late for the departure of the plane or the train, things go forward without us. The practice of law is no exception. A good judge sets deadlines, and the judge has a right to assume that deadlines will be honored.
ShapeSpears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996).
¶51 Even if we were to consider Attorney Kratz's objection to costs on its merits, it falls well short of convincing us to impose anything other than full costs. If anything, Attorney Kratz's untimely objection to costs hurts more than it helps his cause.
¶52 In his untimely objection, Attorney Kratz insists that he should pay no costs whatsoever. The OLR asks us to impose full costs consistent with our standard practice under
SCR 22.24(1m).7 ..."