Vol. 80, No. 7, July 2007
Disciplinary proceedings against:
Other:
Disciplinary proceeding against Brian B. Burke
The Wisconsin Supreme Court suspended the law license of Brian B. Burke, 49, Milwaukee, for two years, retroactive to Jan. 3, 2006, the date on which the court summarily suspended Burke's license for the same misconduct on which the disciplinary proceeding was based. Burke also was ordered to complete 15 hours of CLE ethics credits relating to honesty and pay the $11,081.49 cost of the disciplinary proceeding. Disciplinary Proceedings Against Burke, 2007 WI 46.
Burke ran for attorney general in 2002 while he was a Wisconsin state senator. In June 2002, a complaint was filed against Burke in circuit court alleging that he had broken the law in his race for attorney general. Burke entered a plea bargain in which he pleaded guilty to one count of misconduct in public office (a Class E felony), relating to using state employees to work on his campaign. Burke also pleaded guilty to one count of obstructing an officer (a Class A misdemeanor), relating to Burke's having withheld a summary of a staff member's work history, knowing that it had been subpoenaed. Another count of misconduct in public office was dismissed but was read in for sentencing purposes. On Nov. 30, 2005, Burke was sentenced to six months in jail and ordered to pay a fine.
The Office of Lawyer Regulation (OLR) complaint alleged that Burke committed two violations of SCR 20:8.4(b), which prohibits a lawyer from committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, based on the criminal charges to which he pleaded guilty. Burke had no prior discipline.
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Disciplinary proceeding against Charles J. Chvala
On May 2, 2007, the supreme court approved a stipulation filed by Charles J. Chvala, 52, Madison, and the OLR and ordered that Chvala's law license be suspended for two years, retroactive to April 10, 2006, the date on which the court had summarily suspended Chvala's license for the same misconduct on which the disciplinary proceeding was based. Disciplinary Proceedings Against Chvala, 2007 WI 47.
Chvala is a former Wisconsin state senator who served as minority leader and later as majority leader. In October 2002, Chvala was charged in circuit court with multiple counts of criminal conduct, including misconduct in public office and violating campaign finance laws.
Chvala entered a plea agreement in which he pleaded guilty to one count of misconduct in public office (a Class E felony) for having used state employees to work on political campaigns on state time. Three additional counts were dismissed but were read in for sentencing. Chvala also pleaded guilty to one count of being party to the crime of making an excessive campaign contribution (an unclassified felony); three additional counts were dismissed but were read in for sentencing. In December 2005, Chvala was sentenced to two years of probation with nine months to be served in local jail with work release privileges. Chvala was ordered to refrain from lobbying during his probation.
Based on Chvala's guilty pleas, the OLR complaint alleged that Chvala committed two violations of SCR 20:8.4(b), which prohibits a lawyer from committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. Chvala had no prior discipline.
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Disciplinary proceedings against Mark G. Pierquet
On May 30, 2007, the supreme court revoked the law license of Mark G. Pierquet, 37, Menasha, effective the date of the order. The court ordered Pierquet to pay restitution of $14,447.47 to two clients and to the Wisconsin Lawyers' Fund for Client Protection within 60 days of the date of the order. Disciplinary Proceedings Against Pierquet, 2007 WI 64.
In 2005, Pierquet was publicly reprimanded for professional misconduct and he was ordered to continue to receive medical treatment and to report certain information to the OLR. On July 25, 2006, the court temporarily suspended Pierquet's license based on his failure to comply with these conditions and for his failure to cooperate with the OLR's then-pending investigations. His license remained suspended from that date until the date of the court's revocation order.
Following the OLR's filing of a disciplinary complaint, Pierquet filed a petition for consensual license revocation, pursuant to SCR 22.19, stating that he could not successfully defend against 32 counts of misconduct arising from 12 client matters, and other allegations of misconduct the OLR was investigating in 10 additional matters.
The OLR complaint had alleged that Pierquet committed multiple counts of failing to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3; failing to keep a client reasonably informed about the status of a matter, in violation of SCR 20:1.4(a); failing to protect a client's interests on termination of representation, contrary to SCR 20:1.16(d); failing to disclose all facts and circumstances pertaining to alleged misconduct during the OLR's investigations, contrary to SCR 22.03(2) and (6); and willfully failing to cooperate with the OLR investigations, in violation of SCR 21.15(4).
The OLR complaint also alleged that Pierquet committed single counts of failing to provide competent representation, as required by SCR 20:1.1; failing to abide by his client's decisions concerning the objectives of representation, failing to consult with his client as to how the objectives are to be pursued, and failing to inform his client of settlement offers and abide by the client's decision regarding settlement, in violation of SCR 20:1.2(a); failing to explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation, in violation of SCR 20:1.4(b); failing to communicate the basis or rate of the fee to a client, in violation of SCR 20:1.5(b); failing to reduce a contingent fee agreement to writing, in violation of SCR 20:1.5(c); and failing to deposit a client's funds in an identifiable trust account, in violation of SCR 20:1.15(b)(1).
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Disciplinary proceeding against Ryan D. Lister
The supreme court suspended the law license of Ryan D. Lister, 56, Wausau, for five months, effective June 15, 2007, for Lister's commission of 17 counts of misconduct relating to six OLR grievance investigations. The court also ordered Lister to pay restitution of more than $12,200 to one client and to pay the cost of the disciplinary proceeding. Disciplinary Proceedings Against Lister,2007 WI 55.
In one matter, Lister represented a client in a divorce proceeding. During a hearing regarding child visitation, Lister knowingly made a false statement of fact to a tribunal, contrary to SCR 20:3.3(a)(1).
In a second matter, a former client in an employment case filed a grievance against Lister. During the investigation, Lister failed to timely respond to several letters from the OLR, contrary to SCR 22.03(2).
In a third matter, a client's former spouse filed a grievance against Lister relating to a post-divorce matter. During the OLR investigation, Lister failed to provide information to the OLR, contrary to SCR 22.03(2).
In a fourth matter, Lister filed a lawsuit on behalf of a couple relating to their purchase of a piece of equipment for their business. The equipment seller had refused to deliver the item, claiming that the couple had not made full payment. Lister's failures to obtain timely service, file a brief to oppose dismissal, and keep his clients informed of case developments, all of which led to adverse consequences for the clients, constituted a violation of SCR 20:1.1 (Competence), as well as of SCR 20:1.3 (Diligence) and 20:1.4(a) (Communication).
In a fifth matter, Lister represented a landlord in a lawsuit filed by a former tenant regarding a security deposit and other issues. Lister failed to provide competent representation, in violation of SCR 20:1.1, and failed to act with reasonable diligence and promptness, in violation of SCR 20:1.3. Lister failed to keep his client reasonably informed about the status of the matter, contrary to SCR 20:1.4(a). Lister's failure to refund more than $500 that had been received from the client but had not been earned violated SCR 20:1.16(d). Lister failed to respond to certain correspondence from the OLR, in violation of SCR 22.03(2) and (6).
In a sixth matter, Lister represented a man in a boundary dispute and a dispute regarding a survey of his property. Lister failed to act with reasonable diligence and promptness, in violation of SCR 20:1.3, and failed to keep the client reasonably informed about the status of the matter, in violation of SCR 20:1.4(a). Lister made a misrepresentation to the client regarding the status of the matter, in violation of SCR 20:8.4(c), and repeatedly failed to provide information to the OLR, in violation of SCR 22.03(2) and (6).
In 1986, Lister was publicly reprimanded for neglecting a client matter, failing to carry out a contract of employment with a client, and making a misrepresentation to a client.
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Disciplinary proceedings against Mark A. Phillips
On May 30, 2007, the supreme court suspended the law license of Mark A. Phillips, Elm Grove, for three years. Disciplinary Proceedings Against Mark A. Phillips, 2007 WI 63. The three-year suspension is effective on the expiration of a previous one-year suspension imposed in Disciplinary Proceedings Against Phillips, 2006 WI 43, 290 Wis. 2d 87, 713 N.W. 2d 629. Phillips will receive 112 days' credit for the time he was summarily suspended, following his conviction in federal court of attempted income tax evasion, before the start of his one-year suspension. The court also ordered Phillips to pay the $2,149.21 cost of the disciplinary proceeding.
The court imposed the three-year suspension for Phillips' misconduct in committing the criminal act of attempting to evade his federal income tax obligations. Phillips' conviction for attempted tax evasion was based on his actions in concealing from the Internal Revenue Service $125,000 in loan proceeds in his client trust account and in a separate bank account maintained by his wife. Phillips' previous one-year suspension resulted from his conduct in improperly obtaining the loans from a client and in failing to file state income tax returns and pay state income taxes. After an independent review, the court adopted a referee's findings of fact and conclusions of law and held that, by engaging in willful attempted federal income tax evasion, for which he was convicted and sentenced, Phillips committed a criminal act that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b).
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Disciplinary proceedings against Hazel J. Washington
On May 30, 2007, the supreme court ordered an 18-month suspension of the law license of Hazel J. Washington, Menomonee Falls, based on Washington's federal conviction for income tax evasion. Disciplinary Proceedings Against Washington, 2007 WI 65.
Washington failed to report gross income of more than $100,000 in 1998, a violation for which she was sentenced to five months in prison and two years of supervised release. The plea agreement further showed that, although she was not charged, Washington had additional unreported income in 1999 and 2000 totaling more than $100,000. The court found that the serious nature of Washington's prolonged course of hiding her income and filing false tax returns was contrary to SCR 20:8.4(b). The 18-month suspension was made retroactive to Feb. 3, 2006, when Washington's license had been summarily suspended based on her criminal conviction.
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Disciplinary proceedings against Michael W. Tobin
On May 9, 2007, the supreme court suspended the law license of Michael W. Tobin, Milwaukee, for 120 days, effective June 12, 2007. Disciplinary Proceedings Against Tobin, 2007 WI 50.
Tobin's practice concentrates on real estate closings, and he maintains several trust accounts to handle the closings. In January 2005, Tobin asked his bank to close one of those trust accounts. At the time, there were 18 checks outstanding, amounting to $3,545.67, none of which were payable to Tobin. In addition, the trust account balance of $2,834.96 was $710.71 less than the amount attributable to the 18 outstanding checks. Tobin issued a $2,834.96 check to himself and deposited it into his office account. Tobin then transferred the funds to his payroll account.
In a March 2, 2005, letter to the OLR, Tobin indicated that the original payees of those 18 checks probably were not entitled to the funds, and in "most cases, I have been unable to determine who is. The time I have spent attempting to resolve these items is well in excess of the amount involved." In a May 2005 letter, he explained that his previous comment about the amount of time he spent attempting to resolve the ownership of the uncashed checks was a general statement and did not relate to the 18 checks in question. In a third letter, Tobin stated that he made "no systematic effort to identify the rightful owner of uncashed checks prior to March 2, 2005."
Based on the $710.71 shortfall in the trust account when it was closed and on Tobin's disbursing $2,834.94 to himself when he closed the account, the court concluded that Tobin failed to hold third-party funds in trust, contrary to SCR 20:1.15(b)(1). In addition, the court found that Tobin converted the $2,834.94 by depositing the funds in his office account and transferring them to his payroll account, thus engaging in dishonesty, fraud, deceit, or misrepresentation, contrary to SCR 20:8.4(c). The court also found that Tobin made a misrepresentation to the OLR regarding his attempts to locate the rightful owners of the trust account funds, contrary to SCR 22.03(6).
Tobin closed two other trust accounts and deposited the funds into his office account. One trust account had 31 uncashed checks totaling $3,484.27; the other had 12 uncashed checks totaling $2,964.57. With respect to each of these accounts, the court concluded that Tobin failed to hold client and third-party funds in trust, in violation of SCR 20:1.15(b)(1), and converted trust account funds, thereby engaging in dishonesty, fraud, deceit, or misrepresentation, contrary to SCR 20:8.4(c). The court also found a rule violation based on Tobin's filing inaccurate trust account certifications in 1999, 2000, and 2001, in violation of former SCR 20:1.15(g).
The court ordered that Tobin resolve the distribution of any remaining unidentified or unclaimed trust account funds. Finally, the court ordered Tobin to pay the cost of the disciplinary proceeding. Tobin had no prior discipline.
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Disciplinary proceedings against Jay Andrew Felli
On May 9, 2007, the supreme court revoked the law license of Jay Andrew Felli, Mequon. Disciplinary Proceedings Against Felli, 2007 WI 49. The court also ordered Felli to pay the $8,924.80 cost of the disciplinary proceeding.
While acting as the trustee of a charitable trust, Felli wrote a $2,500 check against trust assets that was payable to "Phoenix." Felli wrote "Ch. Contribution" on the memo line of the check, but the check was deposited to Felli's own company, Phoenix Customs LLC, which built motorcycles and sold motorcycle parts. Felli asserted that he had inadvertently mishandled the check, which was purportedly intended as a contribution to Phoenix House, a charity that operates women's shelters. The creator of the trust testified that she had not authorized Felli to make a charitable distribution to any entity with the word "Phoenix" in its title.
The court determined that Felli's conduct violated SCR 20:8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. The court found that the seriousness of the misconduct, combined with Felli's disciplinary history consisting of a 2005 public reprimand and a three-year suspension imposed in 2006, warranted license revocation.
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Reinstatement of Charles J. Hausmann
On May 17, 2007, the supreme court reinstated the law license of Charles J. Hausmann, 62, Milwaukee. Disciplinary Proceedings Against Hausmann, 2007 WI 54. Hausmann was ordered to pay the cost of the reinstatement proceeding within six months.
Hausmann's license was suspended for one year, effective Aug. 30, 2005, following a federal conviction relating to a kickback scheme involving a referral and billing arrangement with a chiropractor. Disciplinary Proceedings Against Hausmann, 2005 WI 131, 285 Wis. 2d 608, 699 N.W. 2d 923. Hausmann served two months in prison and additional time on supervised release and community service and was ordered to pay a $10,000 fine, and Hausmann and the chiropractor were ordered to pay restitution to the clients of more than $77,000, jointly and severally. Hausmann and his law firm paid the restitution in full. Hausmann expressed an intent to reimburse the firm.
Following a hearing, the court-appointed referee filed a report recommending reinstatement. The Board of Bar Examiners joined in the favorable recommendation. The OLR opposed the reinstatement petition in proceedings before the referee but did not appeal the referee's recommendation for reinstatement.
Before his license suspension, Hausmann had no disciplinary history.
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Public reprimand of Hazel J. Washington
The OLR and Hazel J. Washington, 60, Milwaukee, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A referee appointed by the supreme court thereafter approved the agreement and issued the public reprimand on May 2, 2007, in accordance with SCR 22.09(3).
On Jan. 26, 2006, the supreme court summarily suspended Washington's law license following her 2005 felony conviction of one count of willfully attempting to evade federal income tax obligations.
Washington represented a man who had been sentenced to life imprisonment for first-degree intentional homicide. The purpose of the representation was to pursue postconviction relief. Four days before Washington's summary suspension, she filed a postconviction motion on behalf of her client. Washington did not inform the court, the state's attorney, or her client of her pending suspension status. She did not inform her client as to where she could be reached during her suspension. When she filed her postsuspension affidavit as required by SCR 22.26, she failed to list the man's pending case. Her client's motion was denied, two months after Washington's suspension took effect, because the time limit had expired under the statute cited by Washington.
By filing a motion and failing to recognize the expired time limit of the statute she cited, Washington violated SCR 20:1.1, which requires competent representation. Washington's failure to provide her client with any information concerning her impending suspension, her contact information, and the need to seek representation elsewhere violated SCR 20:1.16(d), which requires a lawyer to give reasonable notice to a client on termination of representation. The same conduct violated SCR 22.26(1)(a) and (b), which require an attorney on or before the effective date of license suspension to notify by certified mail all clients being represented in pending matters of the attorney's suspension and consequent inability to act as an attorney and of the need for the client to seek legal advice elsewhere.
By failing to provide the court or prosecutor with notice of her law license suspension, at the time the postconviction motion was filed or thereafter, Washington violated SCR 22.26(1)(c), which requires prompt written notification to the court and the attorney for the state. Washington violated SCR 22.26(1)(e)(iii) by failing to list in her postsuspension affidavit a client who had a matter pending.
Violations of SCR 22.26 are enforceable under the Rules of Professional Conduct via SCR 20:8.4(f), which states, "It is professional misconduct for a lawyer to violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."
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Hearing to reinstate Mark S. Brown
On Thursday, Aug. 16, 2007, at 9:30 a.m., a public hearing will be held before referee Curry First at the Law Office of Curry First, 158 N. Broadway, # 600, Milwaukee Theatre Center, Milwaukee, on the petition of Mark S. Brown, Columbia, S.C., to reinstate his Wisconsin law license. Any interested person may appear at the hearing and be heard in support of, or in opposition to, the petition for reinstatement.
In Disciplinary Proceedings Against Brown, 2005 WI 49, 280 Wis. 2d 44, 695 N.W.2d 295, the Wisconsin Supreme Court suspended Brown's law license for 18 months on April 22, 2005. Brown's conduct leading to his suspension was based on misconduct between 1998 and 2004 in which Brown converted more than $16,000 in fees belonging to his law firm to his personal use; attempted to convert another $3,000 in fees from two other clients; failed to report fee income on his personal income tax returns; and altered the retainer amount on his firm's copy of a previously-signed retainer agreement, made multiple misrepresentations to his law firm partner and associate, and made misrepresentations in correspondence with the OLR.
To be reinstated, Brown has to substantiate by clear, satisfactory, and convincing evidence that: 1) he has the moral character to practice law in Wisconsin; 2) his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest; 3) all of his representations in his reinstatement petition are substantiated; and 4) he has complied fully with the terms of the order of suspension or revocation and with SCR 22.26.
Relevant information may be provided to or obtained from OLR Investigator Nancy Warner or OLR Assistant Litigation Counsel Julie M. Falk, 110 E. Main St., Suite 315, Madison, WI 53703; (877) 315-6941.
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