Wisconsin Lawyer
Vol. 82, No. 5, May 2009
Public reprimand of Charles J. Labanowsky III
The Office of Lawyer Regulation (OLR) and Charles J. Labanowsky III, Kenosha, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A referee appointed by the Wisconsin Supreme Court thereafter approved the agreement and issued the public reprimand on March 16, 2009, in accordance with SCR 22.09(3).
In four separate circuit court cases, Labanowsky was convicted of the following: misdemeanor second-offense operating with a prohibited alcohol concentration of 0.08 or more; misdemeanor bail jumping; misdemeanor third-offense operating while under the influence (OWI); and misdemeanor fourth-offense OWI. By engaging in acts leading to each of the four convictions, Labanowsky 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 reprimand is conditioned on Labanowsky’s continued treatment for alcoholism and his submission of quarterly reports to the OLR for one year documenting that treatment.
Labanowsky had no prior discipline.
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Public reprimand of Wendy Patrickus
The OLR and Wendy Patrickus, 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 March 27, 2009, in accordance with SCR 22.09(3). The public reprimand stemmed from a single matter investigated by the OLR.
In 2003, Patrickus was hired by a man to represent him in a criminal matter. The client signed a fee agreement for $5,000. The agreement stated that an additional $5,000 would be charged if there was a trial and that bills would be sent from time to time. No hourly fee was listed. At least $2,500 of the initial $5,000 fee was paid. During the representation, Patrickus had her client sign a document assigning to her $10,000 of a $15,000 bail bond. The bond was posted by the client’s father. Following a guilty plea and sentencing, the client’s mother and Patrickus discussed an appeal for her client. Patrickus charged $5,000 for an appeal. On the date of sentencing, the client’s mother modified and signed the assignment, changing it from $10,000 to $15,000. The modification was done without notice to the client. Patrickus filed the assignment with the circuit court clerk. The client did not hire Patrickus to do his appeal. Neither the client nor his mother had the authority to assign the bond, and the clerk of court returned the bond money to the client’s father. On June 1, 2004, Patrickus noted on her copy of the fee agreement that $7,500 was still owed.
In 2007, Patrickus brought suit against the man (then no longer a client) and his parents seeking a money judgment. The complaint stated that the man owed $15,000 plus interest for legal services for a total of $24,018.90, and that his parents owed $15,000 plus interest for breach of contract for a total of $17,226.57. During the course of the OLR investigation, Patrickus prepared and submitted an itemized invoice showing fees of $12,457.50, based on billing at an hourly rate of $150.
Patrickus had been paid a portion of the initial fee, had not earned fees for a trial or for an appeal, and pursued money judgments in excess of that owed. The suit was settled for $2,000.
Patrickus violated SCR 20:1.5(a), effective July 1, 2007, which states, “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses,” based on the following: Patrickus charged a fee of $41,245.47 (the total judgment requested) and filed a lawsuit for unreasonable fees against her client and her client’s parents, in a case in which the initial fee was set at $5,000 and it was undisputed that at least $2,500 of that fee had already been paid; the $5,000 trial fee was rendered unnecessary by the entry of a plea before trial; a $5,000 appeal fee was rendered unnecessary because no appeal was pursued; Patrickus stated her fee would have been $12,457.50 had she billed at an hourly rate of $150; and Patrickus ultimately agreed to settle the lawsuit for her fees for $2,000.
By acting to modify a bail assignment already executed by her client, without notice to her client, and without having her client execute a modified bail assignment or acknowledge the modified terms, Patrickus violated SCR 20:8.4(c), which states, “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Patrickus had no prior discipline.
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Disciplinary proceedings against Jeffrey R. Kohler
In a March 24, 2009 decision, the Wisconsin Supreme Court publicly reprimanded Jeffrey R. Kohler, Spooner, for his misconduct while serving as a part-time assistant district attorney for Washburn County. The court also ordered Kohler to pay the $6,287.43 cost of the disciplinary proceeding. Disciplinary Proceedings Against Kohler, 2009 WI 24.
A referee granted summary judgment in favor of the OLR on three counts of misconduct and, after an independent review, the court agreed with the referee’s findings of fact and conclusions of law. The court found that Kohler had failed or refused to comply with several circuit court orders to provide specific discovery items requested by the defense, in violation of SCR 20:3.4(c), which states that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal. The court also found that Kohler’s failure to make a reasonably diligent effort to comply with defense counsel’s legally proper discovery requests violated SCR 20:3.4(d). Finally, the court found that by representing to a judge during a telephone hearing that he had fully complied with the prior judge’s discovery orders, Kohler knowingly made a false statement of fact or law to a tribunal, in violation of former SCR 20:3.3(a)(1) (effective before July 1, 2007). The circuit court ultimately dismissed the criminal case against the defendant because of Kohler’s disobedience of court orders to provide the discovery.
The referee recommended a public reprimand as an appropriate level of discipline. In considering the appropriate sanction, the court reviewed its prior decisions and noted that, while there was precedent to support either a public reprimand or a 60-day suspension, a public reprimand was sufficient to deter Kohler and other attorneys from similar misconduct. In ruling, the court cautioned that the issuance of a public reprimand should not be interpreted as an indication that the court was not troubled by Kohler’s misconduct. The court emphasized that Kohler’s continuing refusal to comply with the circuit court’s discovery orders was a serious ethical violation and that no attorney has the option of disregarding court orders. Additionally, the court stated that no attorney may distort the truth when arguing before a court, and said that Kohler’s misrepresentation to a judge about his compliance with a prior judge’s discovery orders was a serious breach of his professional obligations.
Kohler had no prior discipline.
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Disciplinary proceeding against Thomas O. Mulligan
On Jan. 29, 2009, the Wisconsin Supreme Court publicly reprimanded Thomas O. Mulligan, Spooner. In addition, the court ordered Mulligan to complete six hours of CLE-approved coursework on legal research and writing and six hours of CLE-approved coursework on appellate practice by Dec. 31, 2009, and to pay the full $6,114.71 cost of the disciplinary proceeding by March 30, 2009. Disciplinary Proceedings against Mulligan, 2009 WI 12.
Mulligan’s public reprimand was based on professional misconduct committed in connection with his representation of an individual and a business in an appeal of an unfavorable civil judgment.
Mulligan violated former SCR 20:1.2(a) and 20:1.4(b) (both in effect before July 1, 2007) by failing to consult with a client regarding Mulligan’s intent to proceed with the appeal without obtaining the trial transcripts and regarding Mulligan’s decision to seek in the appeal only de novo review of a contract at issue in the litigation.
Mulligan received consensual private reprimands in 1997 and 2005.
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