Candidate bumped from county executive race files grievance against opponent's lawyer
One of the Milwaukee County executive candidates bumped from the spring ballot filed a grievance Wednesday against an attorney arguing for his removal from the race.
At the heart of the grievance is attorney Michael Maistelman's representation of Glendale Mayor Bryan Kennedy in previous elections and, Kennedy argues, his failure to obtain a waiver from Kennedy before representing an opponent in this ballot dispute.
Kennedy was one of two candidates, along with former state Sen. Jim Sullivan, who the Wisconsin Elections Commission ordered removed from the ballot for both the Feb. 18 primary and April 7 general election because of a problem with their nomination papers.
"Attorney Maistelman engages in slimy, Chicago-style politics," Kennedy said in a statement. "That is the reason that I have not done business with him in more than a decade."
But Peter Rofes, a professor at the Marquette University Law School, said it did not appear that Maistelman had violated the state's ethics rules for attorneys in his handling of this matter.
"The grievance strikes me as conspicuously unmeritorious," Rofes said Thursday.
Kennedy filed his grievance with the state Office of Lawyer Regulation.
Maistelman is representing Milwaukee County Board Chairman Theodore Lipscomb Sr., who is also running for county executive and successfully challenged signatures submitted by Kennedy and Sullivan.
"I am disappointed in Bryan for filing this frivolous complaint," Maistelman said. "This is a pathetic attempt for revenge because he did not follow the law and paid the price for his actions."
Raymond Dall'Osto, who represents many attorneys facing ethics grievances, declined to discuss the details of Kennedy's grievance.
But Dall'Osto said there are two key issues for lawyers who represent someone involved in a case against a previous client. First, he said, the new case cannot be considered "substantially related" to the details of the previous case.
Then, he said, a lawyer may not take confidential information from a client in a previous case and use that information against that client in later litigation.
Rofes said Maistelman doesn't appear to have violated either of those rules.
"Nothing in the grievance suggests that the prior representation of Mr. Kennedy by lawyer Maistelman endowed Maistelman with confidential information that would be germane to this matter (and) that would be used against his former client," said Rofes, the Marquette law professor.
Lipscomb's challenge ultimately led to the Wisconsin Elections Commission decision, which is now the subject of a court challenge in Milwaukee County Circuit Court. A hearing is scheduled for Friday.
Kennedy argues that Maistelman had twice been Kennedy's election attorney and had later donated to "several" of Kennedy's other campaigns.
The attorney failed to get a waiver from Kennedy before representing Lipscomb in this challenge to Kennedy's candidacy — "a clear violation of ethics and a conflict of interest," Kennedy wrote in the grievance.
Kennedy wrote that Maistelman had represented him in "several" election-related issues in 2004 and 2006, when he was a Democratic candidate running for a seat in the U.S. House of Representatives. He wrote that Maistelman had addressed issues before the Federal Election Commission.
When running unsuccessfully against U.S. Rep. Jim Sensenbrenner, Kennedy came under criticism for using campaign funds to pay himself a salary to campaign and to cover the cost of a babysitter during the race.
"I find it interesting, though, that you guys are going after the middle-class candidate instead of going after the multimillionaire," Kennedy told the Journal Sentinel in September 2006.
Kennedy also wrote in his grievance that he and Maistelman remained friends and that Maistelman had donated to Kennedy's campaigns in 2008 and when he successfully ran for Glendale mayor in 2015.
Maistelman has also represented Sullivan in the past.
Dall'Osto said the situation in this case is unusual because Maistelman works in a very specialized area, meaning there are few attorneys to turn to for representation.
"Mike is a respected lawyer in the election law field, and, as I said, it is a small universe of lawyers who regularly do this kind of work," Dall'Osto said.
Despite filing the grievance against Maistelman, Kennedy said he will not seek to have him disqualified from participating in Friday's court hearing.
If he did so, Kennedy said, a judge would likely give Lipscomb two or three days to find a new attorney before hearing the case. That would mean the county might go forward with printing all the spring ballots without Kennedy's name on them, he said.
Lipscomb’s complaints argued that Kennedy’s and Sullivan’s campaigns had violated state law by using the same people to collect signatures as had state Rep. David Crowley. Lipscomb pushed for their removal from the ballot.
The three campaigns had outsourced the task of gathering signatures, all giving part of the job to community organizer Simon Warren, owner of the Sweet Black Coffee shop. Warren then paid the same individuals to go out and collect signatures for the different campaigns.
Circulators collected nomination papers for Crowley's campaign first, so a complaint was not filed against him. The law says if a circulator collects nomination papers for two candidates for the same office, the papers with earlier signatures are considered valid. The later ones are rejected.
The Wisconsin Elections Commission struck enough signatures to put Sullivan and Kennedy below the threshold of 2,000 valid signatures needed to get on the ballot.
Contact Alison Dirr at 414-224-2383 or adirr@jrn.com. Follow her on Twitter @AlisonDirr.
Contact Daniel Bice at (414) 224-2135 or dbice@jrn.com. Follow him on Twitter @DanielBice or on Facebook at fb.me/daniel.bice.