Wisconsin
Lawyer
Vol. 81, No. 5, May
2008
Private Reprimand Summaries
The
Office
of Lawyer Regulation, an agency of the Wisconsin Supreme Court and
component
of the lawyer regulation system, assists the court in carrying out its
constitutional responsibility to supervise the practice of law and
protect
the public from misconduct by lawyers. The
Office of Lawyer Regulation has offices located at 110 E. Main
St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941. The full
text of items summarized in this column can be viewed at
www.wicourts.gov/olr.
Incompetent Representation; Improper
Termination of Representation
Violations of SCR 20:1.1 and former 20:1.16
A lawyer represented a married couple in a foreclosure lawsuit filed
by their
mortgage holder. The lawyer filed an answer and raised affirmative
defenses. The mortgage
holder subsequently filed a motion for summary judgment against the
couple.
Wisconsin Rule of Civil Procedure section 802.08(3) requires that
when a party files
a motion for summary judgment, the adverse party must submit a
response setting forth
specific facts showing that there is a genuine issue for trial. The
lawyer for the
couple did not, however, file a response to the summary judgment
motion because he
erroneously believed that his clients' response could be presented
through their testimony and
affirmative defenses. The court awarded a default summary judgment
against the couple
because their lawyer did not respond to the motion for summary
judgment.
Because of his error, the lawyer refunded the entire fee that the
couple had paid
to him. The lawyer believed that his representation was completed at
that point.
However, the lawyer failed to inform the couple of the possible option
under section 806.07(1)
and (2) of seeking reconsideration of the summary judgment decision.
By failing to review the applicable statute addressing summary
judgment procedure
and by failing to file a timely response to the summary judgment
motion, the lawyer failed
to provide competent representation as required by SCR 20:1.1. By
failing to inform
the couple of the possible option of seeking reconsideration of the
summary judgment
decision, the lawyer violated former SCR 20:1.16(d) (effective before
July 1, 2007),
which required a lawyer, on termination of representation, to take
steps to the extent
reasonably practicable to protect a client's interests.
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Criminal Traffic Conviction
Violations of SCR 20:8.4(b), 20:8.4(f), 21.15(5), and
10.03(2)
An attorney licensed in Wisconsin but now based in another
jurisdiction engaged in
conduct leading to a criminal conviction in that other jurisdiction of
second-offense
operating while intoxicated, contrary to 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
attorney failed to timely report his conviction to the Office of
Lawyer Regulation (OLR) and
the clerk of the supreme court, contrary to SCR 21.15(5), which is
enforceable under
the Rules of Professional Conduct via SCR 20:8.4(f). After moving from
Wisconsin, the
attorney failed to provide his new address to the State Bar of
Wisconsin, contrary to
SCR 10.03(2) and 20:8.4(f). The attorney previously was publicly
reprimanded for
unrelated misconduct.
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Criminal Act Reflecting Adversely on
Fitness to Practice
Violation of SCR 20:8.4(b)
In February 2007, an attorney was convicted of one count of
misdemeanor criminal
damage to property and one count of misdemeanor disorderly conduct.
The conviction stemmed
from an altercation occurring at the attorney's home the previous
year. The attorney was
sentenced to one year of probation, sentence withheld, with the
following conditions:
performing 100 hours of community service; undergoing counseling; and
paying court
costs. The attorney reported his conviction as required under SCR
21.15(5).
By his acts, the attorney 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."
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Conduct Involving Misrepresentation
Violation of SCR 20:8.4(c)
An attorney who was employed by a professional legal association
attained membership in
a rival association by misrepresenting the nature of his legal
practice. The attorney
attained membership in the rival association for two consecutive years
and attended
two annual conventions sponsored by the rival association. While
attending the second
annual convention, members of the rival association approached the
attorney, who made
misrepresentations to them relating to the nature of his practice.
The attorney twice violated SCR 20:8.4(c) when he made
misrepresentations relating
to the nature of his legal practice on the membership applications of
the rival
association in successive years. The attorney committed a third
violation of SCR 20:8.4(c) when
he made misrepresentations to the members of the rival association at
the convention.
SCR 20:8.4(c) prohibits attorneys from engaging in conduct involving
dishonesty, fraud,
deceit, or misrepresentation.
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Lack of Diligence and Communication
Violation of SCR 20:1.3 and 20:1.4
An attorney received an informal reprimand in the state where he
practiced law for
failing to diligently pursue a defense on behalf of his client and
failing to
communicate with his client. He did not take steps to ensure a trial
took place before the
client remained in jail for longer than the maximum possible
punishment the client could
have been sentenced to at trial, did not consult with her family about
her mental
condition and defense, and never visited her to discuss her case while
she was in jail.
In Wisconsin, this conduct violates SCR 20:1.3 and 20:1.4.
Comparable discipline
in Wisconsin is a private reprimand; therefore, a referee imposed a
private reprimand
pursuant to SCR 22.09.
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Failure to Give Prompt Notice and Distribute
Settlement Proceeds
Violation of former SCR 20:1.15(d)(1)
An attorney represented a client in a personal injury matter relating
to a motor
vehicle accident in 2004. Following the accident, the client received
treatments from a
chiropractor. The case settled in January 2006. The attorney
immediately disbursed part of
the settlement to his client and part to himself as fees but failed to
disburse any funds
to the chiropractor. The attorney acknowledged in the settlement
statement that the
chiropractor was owed almost $3,000 for services rendered, the client
had signed a
doctor's lien in favor of the chiropractor, and the chiropractor had
contacted the attorney
numerous times between July and November 2006 seeking payment. The
attorney's firm
eventually paid the chiropractor in December 2006.
By failing to provide the chiropractor with prompt notice of
settlement and by
failing for approximately 11 months, despite numerous requests from
the chiropractor, to
disburse any portion of the settlement funds due to the chiropractor,
including those
specifically enumerated in the January 2006 settlement statement
prepared by the attorney and
delineated in the doctor's lien, the attorney violated former SCR
20:1.15(d)(1)
(effective before July 1, 2007).
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Conviction of Driving While Under the
Influence (Third Offense)
Violation of SCR 20:8.4(b)
In December 2006, an attorney was the subject of a traffic stop that
led to charges
being filed against the attorney. The attorney entered a guilty plea
and was convicted of
misdemeanor third-offense operating while under the influence. The
attorney's sentence
included a fine, jail time, and license revocation.
By engaging in conduct leading to a criminal conviction of
third-offense
operating while under the influence, the attorney violated SCR
20:8.4(b) (unchanged by amended
SCR 20:8.4, effective July 1, 2007), 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."
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Failure to Supervise in a Criminal
Matter
Violations of former SCR 20:5.3(a) and SCR 20:5.3(b)
A man hired an attorney to assist him in filing a motion for
postconviction relief.
At the time, a woman who was not a lawyer worked for the attorney as a
legal assistant.
The motion was promptly filed by the attorney and was denied by the
court the next day.
Approximately four months after the original motion was filed, a
second motion
was filed on the client's behalf. It, too, was promptly denied by the
court. About a
month later, a letter was sent on the client's behalf, urging the
court to read the
second motion carefully and set the matter for a hearing. While both
the second motion and
the letter contained what purported to be the attorney's signature,
the attorney denied
having knowledge of the drafting or filing of the second motion or of
the letter. The
attorney surmised that his legal assistant drafted and filed both the
second motion and
the letter as a result of a romantic relationship that he believed
developed between
the assistant and the client.
Although the legal assistant denied being romantically involved with
the client,
correspondence between the two supports the notion. Furthermore, it
appears the legal
assistant made several phone calls from the attorney's office to the
client in prison
and arranged to visit him in prison under the guise of professional
visits. The
attorney denied being aware of the phone calls or the visits.
By failing to adequately supervise his legal assistant, thus
allowing her to file
the second motion, write the letter, and call and visit the client in
prison all without
his knowledge, the attorney violated former SCR 20:5.3(a) (effective
before July 1,
2007), which stated, "With respect to a nonlawyer employed or
retained by or associated with
a lawyer … A partner in a law firm shall make reasonable efforts
to ensure that the
firm has in effect measures giving reasonable assurance that the
person's conduct is
compatible with the professional obligations of the lawyer." The
attorney also violated
SCR 20:5.3(b) (unchanged by July 1, 2007 amendments to the Rules of
Professional
Conduct), which states, "A lawyer having direct supervisory
authority over the nonlawyer shall
make reasonable efforts to ensure that the person's conduct is
compatible with the
professional obligations of the lawyer."
The attorney received a public reprimand in 1987 and a six-month
suspension in
1989, both for unrelated conduct.
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Criminal Act Reflecting Adversely on
Fitness to Practice
Violation of SCR 20:8.4(b)
In July 2007, an attorney was convicted of one count of misdemeanor
disorderly
conduct. The conviction stemmed from an altercation involving the
attorney and his wife that
occurred at the attorney's home earlier in the year. The attorney was
sentenced to
12 months of probation, sentence withheld, with the following
conditions: completion
of certified abuser treatment and payment of court costs. The attorney
reported his
conviction as required under SCR 21.15(5).
By his acts, the attorney 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 attorney had no prior discipline.
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Lack of Diligence; Failure to Communicate
Violations of SCR 20:1.3, former 20:1.4(a), and 20:1.4(b)
An attorney agreed to represent a client in a federal claim against
the client's
public employer. However, the attorney did not file a lawsuit nor did
the attorney advise
his client that he did not intend to file a lawsuit. By failing to
make a decision
regarding the viability of the client's claim, or otherwise advance
the interests of the
client over a protracted period of time (almost three years), the
attorney violated SCR 20:1.3.
While the attorney was reviewing the claim, the client repeatedly
requested
information regarding the status of his lawsuit and what efforts were
being taken to advance
his claim. The attorney failed to respond promptly to many of his
client's requests for
information and promised that he would file a lawsuit in the near
future but never
actually filed a suit, ultimately believing the lawsuit was meritless.
By failing to keep
his client reasonably informed about the status of his matter, and by
failing to
respond promptly to his client's reasonable requests for information,
the attorney
violated former SCR 20:1.4(a) (effective before July 1, 2007). The
attorney also violated
SCR 20:1.4(b) by failing to tell his client that the lawsuit lacked
merit and that he did
not intend to file a lawsuit or otherwise withdraw from
representation. These actions
prevented his client from making informed decisions about his case.
The attorney had
no prior discipline.
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Sexual Relationship with Client
Violation of SCR 20:1.8(j)
An attorney agreed to represent a client in a divorce matter and on
several other
matters, including a traffic ticket, a replevin action, and a small
claims action.
Thereafter, the attorney had consensual sexual relations with the
client while the
client's legal matters remained pending and she continued to act as
his attorney. The attorney
did not have a consensual sexual relationship with her client when the
client-lawyer
relationship commenced.
By engaging in sexual relations with a current client, the attorney
violated
SCR 20:1.8(j). The attorney had no prior discipline.
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Lack of Diligence; Failure to Communicate
Violations of SCR 20:1.3 and 20:1.4(a)
A man served a motion on his child's mother, seeking to claim the
child as a
dependent for tax purposes. The motion was scheduled for a hearing.
The woman called a lawyer,
who told her that he would be unavailable for the hearing on the
scheduled date. The
lawyer asked the woman to send him a copy of the documents that were
served. The woman
decided to hire the lawyer, and she sent him additional information.
After being hired, the lawyer did not confirm in writing to the
client that he
was unavailable for the hearing date. The lawyer also did not advise
the client that
she could expect to be cross-examined or have to question the adverse
party at the
hearing. The lawyer filed a short brief with the court on the client's
behalf in which he did
not indicate that he would not appear, and he did not request that the
hearing be continued.
After taking evidence, the court awarded the man the right to claim
the child as
a dependent. The man's counsel sent the proposed order to the lawyer,
who discussed it
with his client. The client instructed the lawyer to file a motion for
reconsideration,
and the lawyer agreed to file such a motion but then failed to do so.
The lawyer's conduct violated SCR 20:1.3 (failure to act with
reasonable diligence
in representing a client) and 20:1.4(a) (failure to keep a client
reasonably informed
about the status of a matter.) The lawyer, now retired, had two prior
private reprimands.
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Failure to Properly Terminate
Representation
Violation of SCR 20:1.16(d)
A lawyer received a private reprimand for twice violating SCR
20:1.16(d) in
unrelated client matters.
In the first matter, a man hired a lawyer to represent him on
several pending
charges. The client was required to pay a $2,500 attorney fee and a
$500 expert witness fee,
both of which the lawyer described as being nonrefundable. The lawyer
never became counsel
of record for the client, except on one charge, which the lawyer
resolved. The client
fired the lawyer, who refused to refund any portion of the fees, even
though the lawyer owed
a partial refund when his bill was calculated on an hourly basis and
had not handled
most of the matters for which he was hired. In failing to return any
portion of the $2,500
fee or the $500 expert witness fee, the lawyer violated SCR
20:1.16(d), which requires
a lawyer, on termination of representation, to refund any advance
payment of fee that
has not been earned. As a condition of the private reprimand, the
lawyer participated in
fee arbitration.
In the second matter, the lawyer was trial counsel for another
client in several
felony and misdemeanor charges. On the day of sentencing, the client
and the lawyer
executed a notice of right to seek postconviction relief that
indicated that the client planned
to seek postconviction relief. Following a meeting two days later, the
lawyer
apparently believed that the client would pursue postconviction relief
through the public
defender's office, while the client believed that the lawyer would
represent him. The
deadline passed for the filing of a notice of intent to pursue
postconviction relief. The
client, acting pro se, later obtained an extension to file a
notice of intent to
pursue postconviction relief, which subsequently was filed by the
lawyer.
On termination of representation, in failing to protect the client's
interests
by either timely filing the notice of intent to pursue postconviction
relief or
providing the client with sufficient information to make clear that
the client would have to
accomplish the filing himself or through successor counsel, the lawyer
violated
SCR 20:1.16(d). The lawyer received a public reprimand more than 20
years ago.
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Conduct Involving Dishonesty, Fraud, Deceit,
or Misrepresentation
Violations of SCR 20:8.4(c)
An attorney was employed by a law firm as an associate. The
attorney's practice
consisted largely of estate planning, estate and trust administration,
guardianships, and
business law. At some point, the attorney decided to leave the firm
and establish her own
practice with two other lawyers. The attorney informed the firm of her
decision on July 10,
2006. After the attorney left the firm, the firm discovered that the
attorney had copied to
her desktop computer, transferred to external storage media, and taken
with her copies of
at least 167 electronic client files, without the firm's or the
clients' knowledge or
permission. Some of the electronic client files the attorney copied
were not files the
attorney had worked on in the past. The attorney had begun copying the
electronic
client files onto her external storage media in April 2006. The
attorney also copied to
external media and took away from the firm a licensed software program
that had been purchased
by the firm.
On July 20, 2006, a partner in the firm sent the attorney a letter
requesting that
she return or destroy the electronic client files she had taken and
that she also return
the copied software media and affirm in writing that no person had
used the program or
retained a copy of it in any format.
In response to the partner's letter, the attorney gave the firm the
storage media
on which she had copied the client files and the software program and
told the firm she
had retained no copies of the information and that no one had used any
of the information.
The attorney said she considered the electronic documents in her
client files to
be her individual work product and that any client files on the
electronic storage
media that did not pertain to her clients were downloaded
inadvertently.
After the attorney left the firm, many clients chose to have their
files
transferred to the attorney at her new firm. At the time the attorney
copied the clients'
electronic files to external storage media, however, and at the time
the attorney left the firm
on July 12, 2006, those clients were still clients of the firm at
which the attorney
had been employed as an associate, and the attorney had not yet
received permission from
any of the clients to transfer the files to her.
By copying to her desktop computer, transferring to external storage
media, and
taking with her at least 167 electronic client files when she left her
employment at a law
firm, without the firm's or the clients' knowledge or permission, the
attorney engaged in
conduct involving dishonesty, fraud, deceit, or misrepresentation, in
violation of
SCR 20:8.4(c).
The attorney also violated SCR 20:8.4(c) when she copied to external
storage media
and took away from her former employer's law office a licensed
software program that had
been purchased by the firm.
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Failure to Provide Diligent Representation
and Keep Client Informed
Violations of SCR 20:1.3 and 20:1.4(a)
A lawyer was appointed by the State Public Defender (SPD) to
represent an
incarcerated man who had a felony drug conviction. The lawyer wrote a
timely introductory letter
to the client, advised him trial transcripts had been requested, and
invited communication.
The lawyer told the client a complete trial transcript was necessary
before
commencing any postconviction representation, but the lawyer waited 21
months to compel
preparation of an alleged missing transcript. The
client's letters and phone calls to the lawyer requesting a meeting
and information about the status of his case went unanswered
for nine months. Only after the client contacted the SPD did the
lawyer communicate with
the client. Communication from the lawyer continued to be sporadic for
two years, and
the lawyer never responded in writing to the client's written requests
for information.
The lawyer's failure to compel preparation of the transcript in a
timely manner
violated SCR 20:1.3, which requires a lawyer to act with reasonable
diligence and
promptness in representing a client. The lawyer's failure to
communicate consistently with the
incarcerated client regarding his postconviction case violated SCR
20:1.4(a), which
requires a lawyer to keep a client reasonably informed about the
status of a matter
and promptly comply with reasonable requests for information.
The lawyer had no prior discipline.
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Failure to Expedite Litigation and to Comply
with Court's Orders
Violations of SCR 20:3.2 and 20:3.4(c)
An attorney represented the husband in a divorce and child custody
matter. The
attorney sought the wife's medical records and her children's medical,
school, and
adoption records. During a hearing, the court indicated that the
attorneys could obtain the
medical records and, if they did so, that a protective order should be
issued. The
parties signed release forms for such records. Neither of the
attorneys drafted a
protective order, and no such order was issued until several months
later. The attorney and
the husband obtained the wife's records, copied them, and read them.
During a hearing in November 2005, the court indicated the
attorney's actions were
not in compliance with the court's previous order. The court ordered
that the records
be returned to the attorneys and sealed and that the lawyers provide
sworn statements
that the sealed sets of documents were complete and correct. The court
granted the
attorney's motion for psychological evaluations and indicated that the
doctor performing the
evaluation should not have access to past medical records. The court
signed a protective
order in December 2005, ordering all records to be sent to the
guardian ad litem (GAL).
The attorney did not comply with the order. At a hearing in March
2006, the
attorney continued to argue that the records should be provided to the
psychologist. The
court indicated that the records would be sealed until trial, when the
court would decide
the admissibility of each record on an individual basis. The court
issued a written
order requiring that the parties return to the attorneys all of the
records accompanied
with sworn affidavits that they had returned everything within their
custody; that the
attorneys seal such documents and include a sworn statement on the
outside of the
sealed records indicating that the records were complete and correct;
and that the records
be delivered to the GAL after trial. The attorney did not comply with
the order.
In April 2006, the attorney filed a motion to lift the seal on the
wife's records
for purposes of a psychological examination. The court found the
attorney's motion
frivolous, indicated that the court had ruled on the records at least
twice and such records
would remain sealed until trial, and ordered that all the medical
records immediately be
turned over to the GAL. The attorney did not comply with the court's
order.
By repeatedly requesting the release of medical records to the
court-appointed
psychologist, including filing a motion to that effect after the court
had previously
ruled on such issue on more than one occasion, the attorney violated
SCR 20:3.2 (unchanged
by amendments to SCR Chapter 20, effective July 1, 2007), which
requires a lawyer to
make reasonable efforts to expedite litigation, consistent with the
interests of the client.
By failing to comply with the court's oral order and subsequent
written orders
that all the records of the parties and their children be sealed, that
each attorney
attest that he had obtained all the records from his client and sealed
them, and that the
attorneys immediately forward to the GAL all such records in the
attorneys' or the
parties' possession, the attorney violated SCR 20:3.4(c) (unchanged by
amendments to SCR
Chapter 20, effective July 1, 2007).
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Failure to Provide Diligent Representation
and to Keep Client Informed
Violations of SCR 20:1.3, 20:1.4 (a), and 20:1.4(b)
An attorney represented an incarcerated man for postconviction relief
on a felony
conviction. The attorney delayed filing a writ for 11 months. For more
than 20 months
after filing the writ the attorney did not respond to letters, phone
calls, and emails
requesting information on the status of the writ and other
postconviction-relief matters.
The attorney conveyed inaccurate information, thereby precluding the
client from making
informed decisions, and failed to monitor the court's action,
resulting in the
client's needing to write directly to the judge to find out the
court's disposition (it had
acted on his writ four months earlier).
In failing to act with reasonable diligence and promptness in
representing the
client, the attorney violated SCR 20:1.3. In failing to keep the
client reasonably informed
about the status of a matter, failing to promptly comply with
reasonable requests for
information, and failing to explain a matter to the extent reasonably
necessary to permit
the client to make informed decisions regarding the representation,
the attorney violated
SCR 20:1.4(a) and (b).
The attorney had no prior discipline.
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Criminal Act Reflecting
Adversely on Fitness to Practice
Violation of SCR 20:8.4(b)
An attorney was convicted of second-offense operating a motor vehicle
while under
the influence and third-offense operating a motor vehicle while under
the influence, in
violation of Wis. Stat. section 346.63(1)(a). The attorney was
sentenced to 120 days in
the local jail with Huber privileges, was ordered to pay a total of
$2,808 in fines and
court costs and undergo a mental health and alcohol assessment, and
had his operating
privileges suspended for six months.
By engaging in conduct resulting in separate convictions for
second-and
third-offense operating a motor vehicle while under the influence,
contrary to section 346.63(1)(a),
in each instance the attorney 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 attorney had been publicly reprimanded for his conduct in two
separate matters.
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False Statement to a Court; Conflicts of
Interest
Violations of former SCR 20:3.3(a)(1), former 20:1.7(b), and
20:1.7(a)(1),
(2), (b)(1), (3), (4)
A man died in January 2005 survived by five adult children. A dispute
arose between
three of the siblings and the sibling who had been named personal
representative regarding
the value and distribution of the estate. The three siblings hired an
attorney to attempt
to negotiate a settlement of the estate with the personal
representative and, if
that failed, to file an action to recover certain assets in the
possession of the
personal representative and one of the three siblings. The attorney
initiated a petition for
formal administration of the estate and advised the probate court that
she represented
the estate. The attorney continued to represent the estate after the
court appointed
a nonfamily member as personal representative, and she acted on behalf
of the estate
to recover assets from one of the three siblings who had hired her and
from the sibling
who had been named personal representative.
By purporting in written and oral statements to the court to be the
attorney for
"the estate," despite not having not hired by the named and
acting-personal
representative, the attorney violated former SCR 20:3.3(a)(1)
(effective before July 1, 2007),
which stated, "A lawyer shall not knowingly … make a false
statement of fact or law to a
tribunal."
By: 1) representing the estate in the petition for formal
administration and in
the successive lawsuits to recover assets after having been hired to
pursue specific
action with regard to the estate beneficial to the interests of three,
but not all, of the
estate beneficiaries; 2) pursuing action beneficial to the personal
interests of three,
but not all, of the beneficiaries while acting as counsel for the
estate; 3) representing
the estate in the lawsuit against one of the three siblings who had
hired the attorney;
and 4) engaging in the aforementioned course of conduct
notwithstanding the presence of
conflicts of interests, and in the absence of any written consent from
the affected
clients, the attorney violated former SCR 20:1.7(b) (effective before
July 1, 2007), which
stated: "A lawyer shall not represent a client if the
representation of that client may be
materially limited by the lawyer's responsibilities to another client
… unless: (1) the
lawyer reasonably believes the representation will not be adversely
affected; and (2)
the client consents in writing after consultation. When representation
of multiple clients
in a single matter is undertaken, the consultation shall include
explanation of the
implications of the common representation and the advantages and risks
involved."
The lawyer also violated SCR 20:1.7(a)(1) and (2), which states:
"Except as
provided in par. (b), a lawyer shall not represent a client if the
representation involves a
concurrent conflict of interest. A concurrent conflict of interest
exists if: (1) the
representation of one client will be directly adverse to another
client; or (2) there is
a significant risk that the representation of one or more clients will
be materially
limited by the lawyer's responsibilities to another client, a former
client or a third
person or by a personal interest of the lawyer."
The attorney also violated SCR 20:1.7(b)(1), (3), and (4), which
states:
"Notwithstanding the existence of a concurrent conflict of
interest under par. (a), a lawyer
may represent a client if: (1) the lawyer reasonably believes that the
lawyer will be able
to provide competent and diligent representation to each affected
client; … (3) the
representation does not involve the assertion of a claim by one client
against another
client represented by the lawyer in the same litigation or other
proceeding before a
tribunal; and (4) each affected client gives informed consent,
confirmed in a writing signed by
a client."
The attorney had no prior discipline. As a condition to imposition
of the
reprimand, the attorney was required to withdraw from representing any
party in the two
pending estate matters and to agree to refrain from representing any
party in any other
legal matters related in any way to the pending estate matters.
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Lack of Competence; Failure to Communicate
Violations of SCR 20:1.1 and 20:1.4(b)
A man hired an attorney to represent him in three pending Racine
County cases
resulting from his arrest for first-offense operating while
intoxicated (a civil offense) and
his refusal to consent to a breathalyzer/blood test. At the time of
his arrest, the man
held a commercial driver's license (CDL) and made his living driving
trucks. The
attorney understood that the client's primary objective with regard to
the pending charges was
to retain his CDL or obtain an occupational permit on his CDL so that
he could continue
to earn his living.
After the client was arrested but before he entered into a plea
agreement on the
pending charges, a federal law change went into effect disqualifying
drivers convicted of
OWI from obtaining an occupational permit on a CDL for one year. The
attorney was fully
aware of the law change and its effective date but mistakenly believed
that it would not
apply because the client's arrest had been before the effective date.
By failing to thoroughly prepare and to accurately research and
analyze the law
relevant to the client's case, resulting in misadvising the client
that he would be
eligible to obtain an occupational CDL, the attorney violated SCR
20:1.1, which states, "A
lawyer shall provide competent representation to a client,"
defined as requiring the
"legal knowledge, skill, thoroughness and preparation reasonably
necessary for the
representation."
By: 1) failing to explain to the client the possibility and
procedures for
reopening his case after he was denied an occupational CDL; 2) failing
to explain to the
client before his plea that there had been a change in the law
relevant to occupational CDLs
and that the attorney had not confirmed the client would be eligible
for an occupational
CDL; 3) failing to discuss with the client that the attorney was
having difficulty coming
up with a solution for the client's ineligibility for an occupational
CDL; and 4) failing
to promptly inform the client that the attorney had been advised by
the court that
there were no other steps available to cause the client to obtain an
occupational CDL, and
so that in each instance the client could make informed decisions
regarding the
representation, the attorney 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 attorney had no prior discipline.
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Failure to Communicate and to
Return Client's
File
Violations of former SCR 20:1.4(a), 20:1.4(b), and former
20:1.16(d)
An attorney represented a woman in a divorce. One issue in contention
was whether
the marital residence should be included in the marital estate. The
deed showed the
husband's brother as the owner, but the client claimed that she and
her husband were purchasing
the home from the brother, had made payments to him, and had
accumulated equity. The
husband and the brother claimed the home belonged to the brother and
said that the client and
her husband paid the homeowner's insurance and taxes and maintained
the home in lieu of rent.
The attorney's firm filed a third-party complaint against the
brother in the
divorce action, alleging that the client and the husband, not the
brother, owned the home.
At the contested divorce trial, the client presented no evidence of
the payments
she alleged had been made by her husband to the brother for purchase
of the home. In a
June 6, 2003 decision, the court denied the client's third-party claim
against the
brother, finding that there was no agreement to purchase the home. The
court concluded that
the client intentionally fabricated her claim, held that the client's
claim against
the brother was frivolous, and granted the brother's request for
attorney fees.
The court gave the brother 30 days to submit his attorney fee
request, after which
the client had 30 days to object in writing to the necessity or
reasonableness of the
fees, and the brother had 15 days thereafter to respond to the
client's submission.
In a June 17, 2003 letter to the attorney, adverse counsel said he
intended to ask
the court to order that the attorney's firm be responsible for the
brother's attorney fees.
On June 24, 2003, the attorney sent a letter to the client
confirming that they
had spoken about the court's decision and informing the client that
the firm would not
be able to handle an appeal because the client had not paid the firm's
fees. The
attorney's June 24, 2003, letter did not mention the issue of the
brother's attorney fees or
the fact that the court order had granted the client 30 days to
respond to the
reasonableness or necessity of the brother's attorney fees after they
were submitted to the court.
Despite having knowledge that adverse counsel intended to ask the
court to assess
the brother's attorney fees against her firm, the attorney did not
inform the client of
the fact that the firm's and the client's interests had diverged with
respect to the issue
of who should be responsible for the brother's attorney fees.
Adverse counsel sent a July 2, 2003, letter to the court itemizing
the brother's
attorney fees and requesting that the fees be assessed against the
attorney's firm.
On July 18, 2003, the attorney filed a motion requesting that her
firm be permitted
to withdraw as the client's counsel because the client had failed to
pay the firm's
legal fees. No date was set for a hearing on the motion to withdraw
because the attorney
believed it was the court's procedure to grant the withdrawal request
if no objection
was received within five days. In fact, the court did not sign the
order granting the
attorney's motion to withdraw until Sept. 9, 2003.
The client consulted another lawyer, and that lawyer's firm sent
letters of July
18, July 30, and Aug. 5, 2003 to the attorney, requesting the name of
the attorney's
malpractice carrier. The consulted lawyer's firm said it was
considering becoming involved
on the client's behalf but was not filing a notice of appearance at
that time.
The attorney filed a memorandum on July 24, 2003, with a copy to the
client,
opposing the request that the brother's fees be assessed against the
attorney's firm and
arguing that any fees assessed should be assessed solely against her
client.
In a July 25, 2003 responsive submission, adverse counsel argued
that it was the
attorney who maintained the frivolous claim and that her firm should
be responsible for
the brother's attorney fees. In a July 28 response to adverse
counsel's July 25 letter,
the attorney again argued that her client should be responsible for
the brother's
attorney fees. The attorney did not send a copy of the July 28, 2003
letter to her client.
In an August 8, 2003 letter decision, the court ordered that the
brother's fees
be assessed against the client only and not her attorney.
On Sept. 5, 2003, the lawyer the client had consulted sent the
attorney a letter
stating that the client was making her second request for her file.
The attorney replied
by fax on the same day, stating that the firm would provide a copy of
the client's file
only if it received a check for $575 and a promise to pay $.35 per
page for all copies
over 1,000. By return fax later that day, the consulted lawyer stated
he would not pay for
the client's file and pointed out that the client needed her file in
order to appeal.
Successor counsel never obtained the client's file from the attorney
or her law firm.
Although the attorney said the client was routinely sent copies of all
documents and
correspondence throughout the course of the representation, several
letters generated by the
attorney or her firm, including letters regarding settlement
proposals, did not
contain copy notations to the client.
By failing to explain to the client that the divorce was not yet
concluded
because each side was entitled to make further submissions to the
court on the issue of
the brother's attorney fees and that, although she could no longer
represent the client,
the client was entitled to respond to adverse counsel's submission
regarding the
brother's fees; and by failing to ensure, during the course of the
representation, that the
client received copies of all correspondence to adverse counsel and
the court, including
the attorney's July 28, 2003 correspondence regarding the brother's
fees, the attorney
violated former SCR 20:1.4(a) (effective before July 1, 2007) and SCR
20:1.4(b).
By failing to provide the client with a copy of her file on request,
the
attorney violated former SCR 20:1.16(d) (effective before July 1,
2007).
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