Wisconsin Lawyer
Vol. 85, No. 11, November 2012
Lack of Diligence; Failure to Consult and Communicate with Client
Violations of SCR 20:1.3, 20:1.2(a), and 20:1.4(a)(3) and (4) and (b)
A lawyer represented a woman in a child-support dispute. In July 2008, the lawyer filed a motion for contempt asserting that the client's ex-husband failed to comply with various child-support obligations. The court directed the parties to file briefs on the support issues by Nov. 4, 2008. The lawyer advised the client that she would provide the client with a copy of the letter brief for review before the lawyer filed it with the court.
On Oct. 28, 2008, the ex-husband's attorney filed his letter brief. On Nov. 4, without first sending a copy to the client for review, the lawyer filed a letter brief with the court. The letter brief failed to address certain issues, relevant to the client's motion, that opposing counsel had raised. In November and December 2008, the client repeatedly asked the lawyer for a copy of the letter brief, which the lawyer failed to provide.
On Nov. 19, the court commissioner issued an order and timely sent a copy of the order to the lawyer. The lawyer failed to send a copy of the order to the client and failed to advise her that the court had ruled.
On Nov. 21, the client called the lawyer and asked her what the court commissioner had ordered. The lawyer failed to return the client's call.
On Dec. 15, the client learned from the child support agency that there was an order reducing her child support. The client called the lawyer that same day, inquiring as to the content of the order. The lawyer stated that she was not aware that an order had been entered and that she would get back to the client in a few days. The lawyer failed to call back.
On Dec. 17, the client sent an email to the lawyer stating that the lawyer had failed to return her calls and to respond to her requests for information about the order. The client stated that she needed to know if she had lost her right to a de novo review. She also requested, again, that the lawyer send her a copy of all letter briefs filed with the court.
On Dec. 19, the lawyer replied to the client's email and stated that she would send her a copy of the order that day. The lawyer further stated, "I will bring a de novo. It is my fault if it is late (I suspect it must have gotten misfiled somewhere in my office) and I will make that clear – the court will not hold it against you."
The lawyer failed to file a motion for de novo review. The lawyer also failed to advise the client of her options with regard to filing a motion for de novo review or a motion to reopen the case.
On Dec. 23, the client sent another email to the lawyer stating that she had still not received any documents from the lawyer and asked that the lawyer contact her by the end of the day on Dec. 29. The client again requested a copy of the letter briefs and the court commissioner's order. The lawyer failed to respond.
On Dec. 29, the client told the lawyer's law partner that the lawyer was not responding to her and had not sent her a copy of the order. The partner located a copy of the order and sent it to the client.
The client believed that the order contained errors. On Dec. 30, the client called the partner to discuss concerns she had regarding the order. The partner agreed to review the file. Ultimately, the client did not ask the partner to pursue the matter further. Sometime thereafter, the lawyer left the law firm.
The lawyer violated SCR 20:1.3 by failing to 1) argue all relevant points beneficial to her client's case in her Nov. 4, 2008 letter brief; 2) prepare the letter brief with sufficient time to allow the client to review it before it was filed; 3) review the Nov. 19, 2008 order between Nov. 21 and Dec. 15, 2008; and 4) timely file a motion for de novo review of the Nov. 19 order or a motion to reopen the case.
The lawyer violated SCR 20:1.2(a) by failing to advise the client that the lawyer had failed to timely file a motion for de novo review of the Nov. 19, 2008 order. The lawyer further violated SCR 20:1.2(a) and SCR 20:1.4(b) by failing to explain the legal options available to the client so that she could make an informed decision about her legal representation after the order was issued.
The lawyer violated SCR 20:1.4(a)(3) and (4) by failing to keep the client reasonably informed about the status of her matter and by failing to promptly comply with the client's reasonable requests for information.
The lawyer had no prior discipline.
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Failure to Provide Competent Representation
Violation of SCR 20:1.1
In 2008, a man received a drunk-driving ticket and hired a lawyer to represent him. Two months later, the man received another citation for drunk driving. In the second incident, the man refused a blood test and received an "Informing the Accused" form and a "Notice of Intent to Revoke Operating Privileges" form. The man promptly informed the lawyer of the new charge, but the lawyer did not ascertain whether the man had refused a test.
The lawyer filed a not-guilty plea for the client with respect to the citation but did not file a request for a hearing on the refusal charge. As a result, the man's driving privileges were revoked and his refusal became a separate violation. The man hired other attorneys to represent him with respect to both drunk-driving-related citations and was successful in defending against both charges. He was unsuccessful, however, in reversing the refusal charge.
By failing to inquire and determine that the man had received a citation for refusal, the lawyer failed to provide competent representation, in violation of SCR 20:1.1.
The lawyer had no prior discipline.
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Lack of Diligence; Failure to Communicate; Conflict of Interest; Failure to Surrender Papers
Violations of SCR 20:1.3, 20:1.4(a)(3) and (b), 20:1.7(a)(2), and 20:1.16(d)
A lawyer represented a man who was co-personal representative of the man's father's estate. The estate filed a claim in the surviving spouse's Chapter 13 bankruptcy related to funds owed to the estate by the surviving spouse. Thereafter, the lawyer hired a bankruptcy attorney to represent the estate's claim in the bankruptcy proceeding.
By failing to actively oversee the bankruptcy attorney's representation with regard to the estate's claim in the surviving spouse's bankruptcy case, which oversight would have allowed the lawyer to remain abreast of developments in that matter, the lawyer violated SCR 20:1.3.
By failing to inform the client in a timely manner of the surviving spouse's objection to the estate's claim in the bankruptcy case, to keep the client apprised of the status of the estate's claim in the bankruptcy case, and to inform the client of the mortgage information provided by the mortgage holder, the lawyer violated SCR 20:1.4(a)(3). By failing to explain to the client the surviving spouse's settlement offer or proposal in the bankruptcy case, the lawyer violated SCR 20:1.4(b).
By seeking out a sister of the client and requesting that she ask the court to remove the client as co-personal representative of the estate, when the lawyer still represented the client as co-personal representative of the estate, the lawyer violated SCR 20:1.7(a)(2).
By failing to deliver the file to the client as requested to do so in two letters from the client, and then refusing to provide the file to the client in person at the lawyer's office, the lawyer violated SCR 20:1.16(d).
The lawyer had one prior private reprimand.
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Lack of Diligence; Failure to Communicate; Failure to Surrender Papers
Violations of SCR 20:1.3, 20:1.4(a)(3) and (4) and (b), and 20:1.16(d)
A circuit court appointed a lawyer to represent a client in a criminal case in which the court of appeals issued an order that remanded an issue to the circuit court for a fact-finding hearing. Several years earlier, the client had been convicted of first-degree intentional homicide while armed and armed robbery. The client was sentenced to life imprisonment for the first-degree intentional homicide conviction and 40 years, to be served concurrently, for the armed robbery conviction. The client had not been represented before the circuit court appointed this lawyer.
By failing to file a notice of appeal, to contact the client after receipt of the first court of appeals order that stated that a notice of appeal must be filed if the court is to review the client's matter further, and to contact the client after receipt of the second court of appeals order denying the client's motion for reconsideration, the lawyer violated SCR 20:1.3.
Given that there was no evidence of a purported closing letter, by failing to communicate with the client and to contact the client after receipt of two court of appeals orders with regard to the client's appeal, the lawyer violated SCR 20:1.4(a)(3) and (4). By failing to explain to the client the scope of the lawyer's representation, the relevant appellate procedures, and the substance and significance of the two court of appeals orders, the lawyer violated SCR 20:1.4(b).
By failing to provide a copy of the hearing transcript to the client, after the client requested it, the lawyer violated SCR 20:1.16(d).
The lawyer had one prior private reprimand.
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Failure to Communicate with Client
Violation of SCR 20:1.4
A lawyer requested a hearing for a client whose Social Security disability claim was denied. Although the agency initially found the request untimely, the lawyer later convinced the agency to grant the request. The lawyer then failed for several months to relay correspondence to the client or to respond to the client's requests for information, and thereby violated SCR 20:1.4(a)(3) and (4), which state: "A lawyer shall ... (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests by the client for information; ..."
In another Social Security matter, the lawyer represented a client who was awarded disability benefits for a closed period. The notice of decision advised the client of her rights to appeal and to file a new claim. The client decided to file a claim for continuing disability. The lawyer's assistant advised the client to sign the forms and return them, which the client did promptly. Believing the lawyer would file her new disability claim, the client did not do so herself. The lawyer did not advise the client that she must file the claim, but believed the client already knew she must do so. The matter took approximately one year to resolve. For these reasons, the lawyer violated SCR 20:1.4(b), which states, "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
The lawyer had no prior discipline.
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Dishonesty; Advancing Frivolous Factual Position in Personal Civil Matter
Violations of SCR 20:8.4(c) and 20:3.1(a)(2)
An employee of a lawyer's nonlaw-related business purchased and took possession of equipment. The employee represented to the seller that he was acting on behalf of the lawyer, but in fact, he was not. The lawyer did not pay the seller.
The seller filed a complaint against the lawyer in small claims court. When served with the complaint, the lawyer denied the legal obligation to pay for the equipment, but retained possession of it and did not pay for it until almost one year later, in violation of SCR 20:8.4(c).
In response to the lawsuit, the lawyer filed a counterclaim alleging that 1) he had been denied a credit card "as a direct result of" the filing of a complaint against him; 2) his credit rating had been destroyed because of the seller's action; 3) the seller's action constituted defamation; and 4) the seller's action in filing the complaint constituted an abuse of process as defined by Wisconsin law, all in violation of SCR 20:3.1(a)(2).
The lawyer had no prior discipline.
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Lack of Diligence; Absence of Fee Agreement; False Statement to Third Party; Criminal Conduct; Dishonesty
Violations of SCR 20:1.3, 20:1.5(b)(1), 20:4.1(a), and 20:8.4(b) and (c)
A man hired a lawyer to help him resolve financial issues caused by the failure of a business. The lawyer did not prepare a fee agreement. Later, the lawyer sought to compromise the client's tax liability with the Department of Revenue (DOR) but terminated his representation before completing the work.
By failing to resolve a pending tax dispute with the DOR after agreeing to handle the matter, the lawyer failed to act with reasonable diligence and promptness in representing the client, in violation of SCR 20:1.3. By failing to communicate the nature and scope of his representation to the client in writing, the lawyer violated SCR 20:1.5(b)(1).
In another matter, involving an estate, the lawyer issued subpoenas duces tecum to a local credit union on behalf of three clients. The subpoenas were signed by the lawyer and contained a heading stating the subpoenas were issued "pursuant to Wis. Stat. § 805.07(2)" and were styled, "State of Wisconsin, Circuit Court, ____ County." The subpoenas also referenced "In re The Estate of _________." However, no pending probate or other court action was pending in any circuit court when the attorney issued the subpoenas.
In issuing subpoenas in the absence of a court proceeding, the lawyer knowingly made a false statement of material fact to a third party, in violation of SCR 20:4.1(a); simulated legal process, a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b); and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c).
The lawyer had no prior discipline.
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Dishonesty; Failure to Provide Written Settlement Statement; Failure to Notify Third Party of Funds
Violations of SCR 20:1.5(c), 20:1.15(d)(1) and (2), 20:5.3(c)(1), and 20:8.4(a) and (c)
A lawyer represented a man, his wife, and their son in a personal injury lawsuit on a contingent-fee basis. During litigation, the man and his wife (the clients) borrowed from presettlement loan companies. The lawyer advised the clients to settle for substantially less than they borrowed because of their preexisting medical conditions. The clients accepted the settlement offer.
The defendants requested that the clients sign a general release before disbursing funds. The clients signed the release and sent it to the lawyer without having their signatures notarized. The lawyer authorized his paralegal to notarize the signatures, thus violating SCR 20:5.3(c)(1) and 20:8.4(a) and (c).
A month later, the lawyer asked the defendants for an amended general release assigning most of the settlement to the son to minimize funds available to the presettlement loan companies. The lawyer used the general-release signature page as the signature page for the amended release, in violation of SCR 20:8.4(c), and sent it to the son's guardian ad litem, requesting his signature. The lawyer thereby obtained a signature page purported to have been signed by the clients and the guardian ad litem all on the same date, in violation of SCR 20:8.4(c).
The lawyer failed to provide the clients with a written settlement statement or accounting after the case settled, in violation of SCR 20:1.5(c) and 20:1.15(d)(2).
The lawyer also failed to notify the presettlement loan companies of receipt of settlement funds and failed to render a full written accounting to the loan companies, in violation of SCR 20:1.15(d)(1) and (2).
The lawyer had no prior discipline.
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Lack of Competence; Lack of Diligence; Failure to Consult; Failure to Communicate; Failure to Expedite Litigation; Failure to Withdraw
Violations of SCR 20:1.1, 20:1.2(a), 20:1.3, 20:1.4(a)(2)-(4) and (b), 20:3.2, and 20:1.16(a)
The State Public Defender (SPD) appointed a lawyer as appellate counsel for two criminal defendants. Although the lawyer ordered transcripts in both cases, he failed to file notices of appeal or other motions within applicable time limits. When the clients inquired on multiple occasions concerning the status of their appeals, the lawyer did not respond. The lawyer also did not respond to inquiries from the SPD, and in one matter did not comply with orders from the court of appeals seeking to know the status of the appeal, although he promised he would file an appeal. Ultimately, the lawyer acknowledged that he lacked the experience and competence to handle criminal appeals, and the SPD appointed successor appellate counsel in both matters.
By failing to provide competent representation to the clients, consult with the clients regarding the objectives of the representation, and act diligently on the clients' behalf, the lawyer violated SCR 20:1.1, 20:1.2(a), 20:1.4(a)(2), and 20:1.3. By failing to communicate appropriately with the clients, including failing to respond to inquiries from both the clients and the SPD, and failing to explain matters to the clients to enable them to make informed decisions, the lawyer violated SCR 20:1.4(a)(3) and (4) and (b). By failing to expedite litigation consistent with one client's interests, and by failing to withdraw from representation when he knew he lacked the competence to represent that client, the lawyer violated SCR 20:1.16(a) and 20:3.2.
The lawyer had no prior discipline.
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Criminal Act that Reflects Adversely on Lawyer's Fitness to Practice
Violation of SCR 20:8.4(b)
A lawyer was convicted in January 2012 of misdemeanor third-offense operating while under the influence, following a September 2011 single-car accident. Upon arriving at the accident scene, a sheriff's deputy detected a strong odor of intoxicants. The lawyer's blood-alcohol level tested at 0.193. The lawyer's sentence included 150 days in jail, with Huber privileges for the first 90 days, 60 days stayed, driver's license revocation for 27 months, and a fine. The lawyer violated SCR 20:8.4(b), which states, "It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."
The lawyer had no prior discipline.
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Failure to Have Written Fee Agreement; Failure to Deposit Advanced Fee into Client Trust Account
Violations of SCR 20:1.5(b)(1) and (b)(2) and 20:1.15(b)(4)
A lawyer represented a man in a divorce. The lawyer had no written fee agreement with the client and deposited the client's initial advance fee of $1,500 directly into the lawyer's business account.
By failing to have a written fee agreement communicating the required information for the lawyer's representation of the client in the divorce proceeding, the lawyer violated SCR 20:1.5(b)(1) and (2).
By depositing the client's unearned advance fee payment directly into the lawyer's business bank account, without acting in a manner indicating an intention to use the alternative-fee-placement measures stated in SCR 20:1.15(b)(4m), the lawyer violated SCR 20:1.15(b)(4).
The lawyer previously received a private reprimand, a public reprimand, and a 60-day suspension.
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Lack of Diligence; Delayed Filing of Bankruptcy; Lack of Written Fee Agreement; Failure to Hold Advanced Costs in Trust; Failure to Communicate
Violations of SCR 20:1.3, 20:1.5(b), 20:1.15(b)(1) and (b)(4), and 20:1.4(a)(4)
A lawyer was hired to file a bankruptcy petition and was paid $1,300 for fees and costs. The lawyer did not prepare a written fee agreement, but relied on a bankruptcy form, which does not communicate the expenses for which the client is responsible. The lawyer did not place advanced costs in trust. The lawyer failed to file the bankruptcy for five months. The client provided records of calls and emails to the lawyer, to which the lawyer did not respond.
By failing to promptly file the bankruptcy, the lawyer violated SCR 20:1.3, which states, "A lawyer shall act with reasonable diligence and promptness in representing a client."
By failing to provide a written fee agreement, the lawyer violated SCR 20:1.5(b)(1), which states, "The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing...."
By failing to place advanced costs in trust, the lawyer violated SCR 20:1.15(b)(1), which states, "A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and 3rd parties that is in the lawyer's possession in connection with a representation;" and SCR 20:1.15(b)(4), which states, "Funds advanced by a client or 3rd party for payment of costs shall be held in trust until the costs are incurred."
By failing to respond to requests for information, the lawyer violated SCR 20:1.4(a)(4), which states that a lawyer shall "promptly comply with reasonable requests by the client for information."
The lawyer had no prior discipline.
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Lack of Diligence; Failure to Communicate; Providing Improper Financial Assistance to Client
Violations of SCR 20:1.3, 20:1.4(a)(3) and (b), and 20:1.8(e)
A man hired a lawyer to seek a postdivorce reduction in the man's maintenance obligation and to address the man's maintenance arrearages. The lawyer and adverse counsel each filed motions in connection with the postdivorce issues relating to maintenance. The parties eventually stipulated as to an amount the client would pay to purge a contempt finding.
During the representation, the lawyer failed to timely file appropriate motions, failed to follow up on all pending motions filed with the court, including one motion that was never placed on the court's calendar, and failed to appear at certain hearings held in connection with the proceedings, contrary to SCR 20:1.3.
The lawyer paid $6,000 of his personal funds to meet the client's contempt purge requirement, in violation of SCR 20:1.8(e).
The lawyer violated SCR 20:1.4(a)(3) by failing to inform the client of a motion the lawyer filed for a suspension of maintenance payments, by failing to inform the client of one hearing and by failing to inform the client that he was required to attend another hearing, and by failing to inform the client that the attorney had made the $6,000 contempt purge payment.
During the representation, the lawyer failed to fully explain the purpose and outcomes of various hearings and the potential consequences of the client's continued failure to make maintenance payments, in violation of SCR 20:1.4(b).
The lawyer had no prior discipline.
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Conduct Involving Dishonesty, Fraud, Deceit, Misrepresentation
Violation of SCR 20:8.4(c)
A lawyer represented a woman, the surviving spouse, in a probate case. During the representation, the lawyer sent the woman a letter enclosing two separate petitions for her to sign, which the lawyer had already notarized. The letter requested that the woman sign the petitions and mail them along with the lawyer's letter to the county register in probate.
The woman brought the lawyer's letter and one of the petitions to the office of the register in probate, where the deputy register in probate notarized the petition with the woman present.
The lawyer said that he notarized the documents before mailing them for the client's convenience. The lawyer also said that he had a telephone conference with the woman in which he told her that he would be sending her for her signature two petitions, which would be filed with the probate court. The lawyer stated that he was certain the woman would be the one signing the documents. The lawyer acknowledged that his actions were not appropriate under Wis. Stat. section 706.07.
The lawyer also noted that the division of the probate assets was completed by stipulation reached between all heirs and their legal counsel. The petitions the lawyer notarized were not necessary in the probate action.
By notarizing two petitions without seeing the woman sign either one, and then mailing them to her for her signature, the lawyer violated SCR 20:8.4(c).
The lawyer was previously privately reprimanded.
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Failure to Prepare Fee Agreement
Violations of SCR 20:1.5(b)(1) and (2)
In January 2009, a lawyer agreed to represent a client in a sentencing matter and provide appellate representation in matters resulting from the client's multiple convictions. The lawyer informed the client of his fee, which exceeded $1,000. The client sent the money shortly thereafter, and the lawyer sent the client a follow-up letter acknowledging the payment. However, the lawyer did not prepare a written fee agreement discussing the scope of his representation or the purpose and effect of the advanced fee.
The circuit court conducted a sentencing hearing in March 2009. At that hearing, the circuit court specifically approved the fee requested by the lawyer and issued a written order confirming the fee.
Although the lawyer contended that the circuit court's subsequent approval of his fee obviated the need for a written fee agreement, the Rules of Professional Conduct mandate that if the cost of a representation exceeds $1,000, the scope of the representation and the purpose and effect of any advanced fee must be communicated to the client in writing.
By accepting a fee from a client in an amount in excess of $1,000, and failing to communicate in writing the scope of the representation, the basis or rate of the fee, and the purpose and effect of any advanced fee or retainer, the lawyer violated SCR 20:1.5(b)(1) and (2).
The lawyer had two prior private reprimands.
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Lack of Competence; Failure to Respond to Bankruptcy Trustee; Failure to Have Written Fee Agreement
Violations of SCR 20:1.1, 20:1.3, and 20:1.5(b)(1) and (2)
A lawyer practicing in bankruptcy law failed to correctly file a Chapter 13 bankruptcy petition and accompanying schedules, despite numerous opportunities to do so and specific advice from the bankruptcy trustee on the correct information needed for such forms, in violation of SCR 20:1.1. The lawyer also failed to timely respond to the bankruptcy trustee's motion to dismiss the Chapter 13 bankruptcy matter on the basis of such deficient forms, in violation of SCR 20:1.3.
In addition, by accepting an advance fee from the client to represent her in the bankruptcy matter, with the expectation that the total fee would be at least $2,500, and failing to enter into a written fee agreement with the client, the lawyer violated SCR 20:1.5(b)(1) and (2).
The lawyer had no prior discipline.
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