Background
Jerome J. Babiak was admitted to the Wisconsin bar in 2017 and practiced criminal defense law in the Wisconsin Rapids area. He came to know “Amy” (a pseudonym) because he represented her ex-boyfriend in criminal matters; Amy communicated with Babiak about those cases in hopes of gaining information useful to her own custody dispute over a child she shared with the ex-boyfriend. Over time, Babiak shifted their communications to his personal phone and Snapchat, where he sent increasingly explicit and sexually aggressive messages, including unsolicited explicit photographs. Amy tolerated the communications because she feared losing access to information about her ex-boyfriend’s cases if she complained.
On August 30, 2022, at the county courthouse just before a hearing in the ex-boyfriend’s criminal case, Babiak led Amy into a conference room, shut the door, then pinned her against the wall by her throat, kissed her, and digitally penetrated her without consent. Two weeks later, on September 14, 2022, he made an unannounced visit to Amy’s apartment, forced her against a couch, digitally penetrated her, and attempted further sexual contact while she repeatedly said “no” and “stop.” Amy surreptitiously recorded the second incident; she subsequently reported both events to law enforcement.
Babiak pled guilty in May 2023 to two counts of fourth-degree sexual assault (misdemeanors under Wis. Stat. § 940.225(3m)) and was placed on two years’ probation with sentence withheld. The Office of Lawyer Regulation (OLR) moved for a summary suspension, which the Wisconsin Supreme Court granted on January 26, 2024. The OLR then filed a disciplinary complaint alleging two counts of misconduct. The parties stipulated to the facts in the criminal complaint; the sole disputed issue before Referee David A. Piehler was the appropriate sanction. The OLR sought revocation; Babiak requested a two-to-three-year suspension. The referee recommended a four-year suspension, backdated to the January 2024 summary suspension. The OLR did not appeal.
The Court’s Holding
The Wisconsin Supreme Court adopted the referee’s findings of fact and conclusions of law on both misconduct counts but departed from the recommended four-year suspension. On Count One, the court held that Babiak violated SCR 20:8.4(b) by committing criminal acts—two forcible, penetrative sexual assaults—that reflect adversely on his fitness as a lawyer, stressing that the relevant inquiry focuses on the nature of the conduct stipulated to, not merely the misdemeanor charges to which he pled. On Count Two, the court held that Babiak’s course of sexually aggressive electronic communications to Amy, who was in a position of vulnerability because of his role as opposing counsel in matters affecting her custody dispute, violated the “offensive personality” clause of the Attorney’s Oath as enforced through SCR 20:8.4(g) and SCR 40.15. The court limited Count Two to the electronic communications, finding the count’s pleading of the physical acts ambiguous.
On sanction, the court concluded that revocation—not a four-year suspension—was warranted. Drawing on In re Meyer, 2022 WI 39, and the principle that discipline in attorney cases “is not an exact science,” the court rejected the referee’s view that revocation requires misconduct reaching the level of Meyer or Dudas. The court found that Babiak’s commission of a forcible sexual assault inside a courthouse, followed by a second assault two weeks later, combined with his exploitation of Amy’s vulnerability arising from his status as her ex-boyfriend’s lawyer, demonstrated a “complete and utter disregard for his obligations as an attorney” and an inability to conform his conduct to the standards required for Wisconsin practice. The court held that no sanction short of revocation would adequately protect the public, deter similar behavior, or impress upon Babiak the gravity of his misconduct.
The court set the revocation’s effective date as January 26, 2024—the date of the underlying summary suspension—consistent with its practice in cases arising from SCR 22.20 proceedings. It imposed the full costs of the disciplinary proceeding, $13,224.55, on Babiak. No restitution was ordered because the OLR did not seek it. Justice Ziegler, joined by four other justices, concurred to note that Wisconsin “revocation” is not truly permanent because an attorney may petition for reinstatement after five years, and to reiterate her view that permanent revocation should be available in rare cases.
Key Takeaways
- The Wisconsin Supreme Court may impose a harsher sanction than a referee recommends; the court has plenary authority over the appropriate discipline regardless of the referee’s suggestion.
- For purposes of SCR 20:8.4(b), the court evaluates the full nature of the stipulated conduct, not merely the criminal charges to which an attorney pled guilty — here, misdemeanor pleas did not prevent the court from treating the conduct as two forcible, penetrative sexual assaults.
- Committing a sexual assault inside a courthouse is an especially serious aggravating circumstance, breaking not only the law but the norms of decorum and safety that courthouses must maintain.
- An attorney’s exploitation of a power imbalance created by the attorney-client relationship — even where the victim is not the attorney’s own client — can constitute a violation of the Attorney’s Oath’s “offensive personality” clause.
- Mitigating factors such as lack of prior discipline, remorse, and cooperation with the OLR do not preclude revocation when the underlying conduct demonstrates a fundamental unfitness to practice law.
Why It Matters
This decision reinforces that Wisconsin takes attorney sexual misconduct with the utmost seriousness, and that revocation is not reserved for attorneys convicted of felonies or for those with misconduct as voluminous as in prior landmark cases. The court’s explicit rejection of a “floor” theory — under which revocation would only be available when misconduct reaches or exceeds the severity seen in prior revocation cases — signals that courts retain broad discretion to impose the ultimate sanction whenever the totality of conduct demonstrates an attorney’s unfitness to hold a law license, regardless of whether the criminal system imposed felony charges.
The Ziegler concurrence, joined by a majority of the justices, also surfaces an ongoing institutional concern: Wisconsin’s “revocation” label may mislead the public because revoked attorneys remain eligible to petition for reinstatement after five years. That tension — between the gravity connoted by “revocation” and the legal reality that it is not permanent — may prompt future rule-making discussions about whether a truly permanent bar should be available in Wisconsin for the most egregious cases.