## Facts

- Allen R. Brey was a Wisconsin-licensed attorney and the Taylor County District Attorney.
- In October 1988, Brey prosecuted a criminal defendant charged with multiple offenses; the defendant was jailed pretrial and represented by counsel, which Brey knew.
- Brey arranged to have the defendant brought to the jail library and met with him alone, without defense counsel’s knowledge or consent.
- During the ex parte meeting, Brey commented on defense counsel’s representation and discussed plea-bargain terms directly with the defendant.
- After the defendant disclosed the meeting to his attorney, defense counsel sought to bar Brey from further participation in the prosecution.
- In a subsequent application to the circuit court for appointment of a special prosecutor, Brey denied having met with the defendant.
- During the disciplinary investigation, Brey denied in three letters to the disciplinary authority that any meeting had occurred and maintained the denials until he later admitted the meeting before a professional-responsibility committee.
- The parties stipulated to the material facts in the disciplinary proceeding; the referee recommended a public reprimand, while disciplinary counsel sought a 60-day suspension.

## Issues

1. Whether Brey committed professional misconduct by communicating ex parte with a represented criminal defendant about the case and plea negotiations without counsel’s knowledge or consent.
2. Whether Brey committed professional misconduct by intentionally making false statements to the circuit court and to the disciplinary authority to conceal the ex parte contact.
3. What sanction was appropriate: public reprimand or a period of license suspension.

## Decision

- The Wisconsin Supreme Court held that Brey committed professional misconduct by the ex parte communication with a represented defendant and by intentional misrepresentations to the circuit court and the disciplinary authority.
- The court rejected the referee’s recommended public reprimand.
- The court imposed a 60-day suspension of Brey’s Wisconsin law license.
- The court treated Brey’s repeated, intentional falsehoods as separate misconduct and a significant aggravating factor.

## Legal Principles

- A lawyer may not communicate about the subject of a matter with a person the lawyer knows is represented by counsel in that matter without the represented person’s counsel’s consent or other authorization.
- A prosecutor’s direct contact with a represented criminal defendant to discuss plea terms is a serious abuse of prosecutorial authority because it risks undermining the defendant’s right to counsel and fair process.
- Intentional false statements to a tribunal and to disciplinary authorities are independent, serious violations that damage the integrity of the judicial and disciplinary systems and aggravate the sanction for the underlying misconduct.
- Even without prior discipline, suspension is warranted where misconduct combines ex parte contact with a represented party and deliberate concealment through repeated dishonesty.

## Conclusion

The court concluded that a district attorney’s ex parte plea-related contact with a represented defendant, compounded by intentional false statements to the circuit court and disciplinary authorities to conceal the conduct, warranted a 60-day suspension rather than a public reprimand.


In re Disciplinary Proceedings Against Brey, 171 Wis. 2d 65, 490 N.W.2d 15 (Wis. 1992)