Former Supreme Court Justice Michael Gableman in a 2021 video promoting the partisan review of the 2020 election. (Screenshot/Office of the Special Counsel YouTube channel)
Former Supreme Court Justice Michael Gableman’s license to practice law in Wisconsin should be suspended for three years, a third-party referee wrote, agreeing with the state Office of Lawyer Regulation’s allegations that he violated standards for professional conduct during his much-maligned review of the 2020 presidential election.
The Wisconsin Supreme Court will have the final say in the matter, a Court spokesperson said Friday.
The suspension recommendation marks the conclusion of Gableman’s effort to fight attempts to hold him accountable for his conduct during the election investigation. The OLR found that while working on behalf of Assembly Speaker Robin Vos to look into alleged wrongdoing during the election, Gableman lied to a Waukesha County judge about conversations he had with other attorneys, lied to an Assembly committee, deliberately violated state open records laws, used his agreement with Vos to pursue his own political interests, violated his duty of confidentiality to his client and lied in an affidavit to the OLR as it was investigating him.
Gableman’s investigation ultimately cost the state more than $2.3 million without finding any evidence to confirm President Donald Trump’s baseless claims of fraud during the 2020 election.
The review also helped further fan the flames of election conspiracy theories in the state. Those beliefs have remained prominent among segments of the state Republican Party’s base nearly five years after the election.
After fighting the allegations against him, Gableman ultimately reached an agreement with the OLR and stipulated that the allegations in the complaint against him were true.
In his report the referee, James Winiarski, wrote that the consequences for Gableman’s actions must be severe.
“A high level of discipline is needed to protect the public, the courts and the legal system from repetition of Attorney Gableman’s misconduct by Attorney Gableman or any other attorneys,” Winiarski wrote. “His misconduct was very public in nature and involved many members of the public and employees of several municipalities.”
This report has been updated to clarify that the Wisconsin Supreme Court will make the final decision on the referee’s recommendation.
A formal recommendation of punishment for Michael Gableman, whose career rise and fall set him apart in Wisconsin legal and political history, signals the end of a case that has been humiliating for the former state Supreme Court justice and the court itself.
In a report issued Friday, a referee in a state Office of Lawyer Regulation case found that Gableman committed 10 lawyer misconduct violations in his probe of the 2020 presidential election in Wisconsin.
The partisan probe was authorized at the behest of then-citizen Donald Trump, who lost that election to Joe Biden.
The referee, Milwaukee attorney James Winiarski, recommended that the state Supreme Court suspend Gableman’s law license for three years.
Gableman and the Office of Lawyer Regulation, seeking to settle the case, had stipulated to the three-year suspension.
“A high level of discipline is needed to protect the public, the courts and the legal system from repetition” of Gableman’s conduct, by him or other attorneys, the referee wrote.
Former state Supreme Court Justice Janine Geske, who was appointed to the court by Republican Gov. Tommy Thompson, said before the report was issued that Gableman’s behavior in the investigation “was so outrageous and damaging to the image of the Supreme Court.
“But he has been on the outskirts or around ethical violations his whole Supreme Court career.”
Gableman, 58, a Waukesha County resident who has largely receded from public view, did not reply to requests for comment.
The conservative Gableman, a former small-county judge with close ties to the Republican Party, made history by defeating an incumbent justice in the 2008 election. He served one 10-year term before his career began to unravel.
As Wisconsin Watch detailed in April, Gableman attended the 2016 Republican National Convention, in possible violation of the state judicial code, and had to be escorted out of two gatherings there after causing disturbances. After deciding not to seek re-election in 2018, he worked for the first Trump administration before leading the election investigation, a probe that found no fraud but cost taxpayers $2.8 million — four times the budgeted amount.
Gableman now finds himself facing punishment from the very court he served on.
Winiarski has practiced law for more than 40 years and has previously served as referee in lawyer discipline cases. He invoiced the Supreme Court $8,208 for nearly 109 hours on the case at $75.51 per hour. He recommended Gableman be responsible for all costs associated with the disciplinary matter.
The suspension recommendation essentially codifies a stipulation Gableman made in April with the Office of Lawyer Regulation in which he stated he could not successfully mount a legal defense against the misconduct allegations.
The liberal-majority Supreme Court, which began its current session in September, must still approve the punishment.
Geske, who was a justice from 1993 to 1998, said the suspension would be fair punishment in part because Gableman’s conduct in the investigation, including threatening to jail elected officials, helped solidify the public perception that Wisconsin judges have become partisan actors.
“I think people wonder what’s happening in the court and what’s happening with the individual justices,” she said. “So I think he did great harm to the court in engaging in that behavior.”
The Office of Lawyer Regulation case against Gableman alleged that during the election investigation Gableman violated 10 counts of Supreme Court rules of professional conduct for attorneys. He was accused of making false statements about a judge, an opposing attorney and two mayors; making false statements to the Office of Lawyer Regulation; disobeying a court order; and violating the state open records law and confidentiality rules.
University of Wisconsin-Madison political science professor Howard Schweber, who is affiliated with UW’s law school, said a three-year license suspension verges on lenient because of the seriousness of the misconduct and because Gableman was acting in a public capacity, not as a private attorney.
Wausau attorney Dean Dietrich, a former Wisconsin Bar Association president and expert on lawyers’ professional responsibility, said “it is unfortunate” that a former justice is facing a law license suspension, but that “the actions of one person do not reflect the actions of others.”
Judicial offices in Wisconsin technically are nonpartisan, but state Supreme Court races have drawn heavy participation and money from the Republican and Democratic parties.
Marquette University law professor Chad Oldfather, author of a recent book on the importance of selecting judges with good character, said a three-year suspension would be typical for the type of misconduct alleged against Gableman.
“Ultimately, we want people of the highest character in judicial roles,” Oldfather said. “Somehow we have to find a way to get the legal profession and the broader culture to buy into that as the top priority, which seems like an awfully heavy lift these days.”
There are also calls for tougher action on lawyer misconduct.
Madison lawyer Jeffrey Mandell, head of a law firm that filed a misconduct complaint against Gableman with the Office of Lawyer Regulation, noted that Gableman previously was investigated for ethics violations involving an ad he ran in his Supreme Court campaign and for hearing cases while a justice that involved a law firm that gave him free legal services.
Gableman was not sanctioned in those cases.
Mandell said the state needs to act more quickly and more decisively on lawyer misconduct. He noted Wisconsin lawyers are not subject to permanent disbarment. Those who receive the most severe punishment, a five-year license revocation, can petition after five years to get their license back.
The vast majority of states allow disbarred attorneys to apply for license reinstatement.
“Some conduct is simply beyond the pale, deserving of a permanent ban from the public trust of legal practice,” Mandell said. “It’s past time for Wisconsin to recognize this.”
After the report was issued, Mandell called for the Supreme Court to revoke Gableman’s law license, saying: “Anything less minimizes the gravity of his offensive behavior and lacks deterrent effect. Wisconsin attorneys must understand that engaging in unethical conduct to overturn the will of voters will not be tolerated, regardless of who the actor is.”
Login
