Wisconsin Lawyer
Vol. 82, No. 7, July 2009
Disciplinary proceeding against Arik J. Guenther
On March 24, 2009, the Wisconsin Supreme Court suspended the law license of Arik J. Guenther, Campbells-port, for nine months. Disciplinary Proceedings Against Guenther, 2009 WI 25. At the time of the court’s order, Guenther’s license remained suspended as a result of a prior disciplinary action.
The proceeding arose from Guenther’s representation of a client in 2003 and 2004 regarding post-divorce issues. A hearing was held on March 26, 2004, regarding a request by Guenther’s client that her ex-husband contribute to the payment of some debts and account for some undivided personal property. During the hearing, the circuit court directed Guenther to provide a list of disputed personal property and unresolved debts to the ex-husband by April 15, 2004. The court required the ex-husband to submit a response to that list by May 15, 2004. The court stated that if neither party requested another hearing on the matter by June 1, 2004, the court would consider the matter closed.
Guenther did not submit a list to the client’s ex-husband and did nothing further to pursue the matter. He did not inform the client that he was no longer representing her interests. In July 2005, the client learned from a newspaper article that Guenther’s law license had been suspended. Guenther did not provide the client with a copy of her file until after it was requested by a new lawyer in January 2006. The new attorney attempted to re-open the matter, but his motion was denied.
After the client filed a grievance with the Office of Lawyer Regulation (OLR), the matter was referred to an OLR investigative committee. Guenther failed to appear for three separate interview appointments with committee investigators. He attributed his failures to appear to health issues, but he failed to comply with the committee’s request for medical records and disclosure authorizations that would confirm his assertion.
Guenther violated SCR 20:1.3, by failing to act with diligence and promptness in pursuing his client’s case; former SCR 20:1.16(d), by failing to inform his client that he was no longer working on her matter and failing to timely provide a copy of her file; and SCR 22.04(1), by failing to cooperate with the OLR’s investigative committee. Guenther was ordered to pay restitution to the client for fees that were attributable to the unresolved issues and to pay the cost of the disciplinary proceeding.
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Hearing to reinstate Michael A. Gral
On Tuesday, Aug. 18, 2009, at 9 a.m., a public hearing will be held before referee James J. Winiarski at the State Office Building, 819 N. 6th St., Room 45, Milwaukee, on the petition of Michael A. Gral, Fox Point, to reinstate his 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 Gral, 2007 WI 22, 299 Wis. 2d 160, 727 N.W.2d 495, the Wisconsin Supreme Court suspended Gral’s law license for three years, based on his federal criminal conviction for mail fraud. Gral thereby violated SCR 20:8.4(b), by committing a criminal act that reflects adversely on one’s honesty, trustworthiness, or fitness as a lawyer in other respects.
To be reinstated, Gral must substantiate by clear, satisfactory, and convincing evidence that he has the moral character to practice law in Wisconsin, his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, all his representations in his reinstatement petition are substantiated, and 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 Emily Kokie or assistant litigation counsel Julie M. Falk, 110 E. Main St., Suite 315, Madison, WI 53703-3383. The OLR’s toll-free telephone number is (877) 315-6941.
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Hearing to reinstate Jeffrey L. Elverman
On Monday, Sept. 14, 2009, at 9 a.m., a public hearing will be held before referee John R. Decker at the offices of the Milwaukee Bar Association, 424 E. Wells St., Second Floor, Milwaukee, on the petition of Jeffrey L. Elverman, Brookfield, to reinstate his 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 Elverman, 2008 WI 28, 308 Wis. 2d 524, 746 N.W.2d 793, the Wisconsin Supreme Court suspended Elverman’s law license for nine months, based on Elverman failing to report $230,000 in cotrustee fees he received from a client’s trusts as income on state and federal returns he filed from 1999 to 2003. He thereby violated a supreme court decision regulating the conduct of lawyers, Disciplinary Proceedings Against Owens, 172 Wis. 2d 54, 56-57, 492 N.W.2d 157 (1992), in violation of SCR 20:8.4(f).
To be reinstated, Elverman must substantiate by clear, satisfactory, and convincing evidence that he has the moral character to practice law in Wisconsin, his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, all his representations in his reinstatement petition are substantiated, and 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 Lorry Eldien or assistant litigation counsel Julie M. Falk, 110 E. Main St., Suite 315, Madison, WI 53703-3383. The OLR’s toll-free telephone number is (877) 315-6941.
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Public Reprimand of Patrick S. Vida
The OLR and Patrick S. Vida, South Milwaukee, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement and issued the public reprimand on April 24, 2009, in accordance with SCR 22.09(3). The public reprimand stemmed from a single matter investigated by the OLR.
Vida was hired by a woman to assist her with a residential-real-estate purchase. Vida reviewed the offer to purchase, which included provisions requiring the seller to provide a condition report and a sanitary-disposal-system report. Aware that there was a home septic system, Vida did not act to obtain or have his client obtain a condition report or a current sanitary-disposal-system report. After the purchase, septic problems were discovered and Vida’s client spent more than $30,000 to remedy the problem and to purchase additional land to install a mound septic system.
The client contacted Vida to pursue remedies against the previous owners and the realtor for failing to disclose a known sewer problem. Over the course of 14 months, the client repeatedly contacted Vida regarding the status of a lawsuit to recover damages. The client then began to suspect that Vida was stalling, and she tape-recorded conversations she had with him. During those conversations, Vida represented to his client that he had filed a lawsuit when in fact he had not.
Vida failed to timely respond to the OLR’s initial written inquiry regarding the client’s grievance.
By failing to either act on his own to timely secure disclosure reports or to instruct his client to obtain them before completing a real estate purchase, Vida failed to act with reasonable diligence and promptness in representing his client, in violation of SCR 20:1.3.
By failing over 14 months’ time to pursue his client’s claim for damages stemming from the real estate transaction, and by otherwise failing to timely advance his client’s interests in obtaining compensation from the seller and the realtor, Vida again violated SCR 20:1.3.
By intentionally providing his client with the false information that he had filed a lawsuit on her behalf, causing the client to have an incorrect understanding of the status of her legal matter, Vida violated SCR 20:1.4(a), which requires that a lawyer keep a client reasonably informed about the status of a matter, and SCR 20:8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.
By failing to timely and fully respond to the OLR’s initial written inquiry regarding the grievance, Vida violated SCR 22.03(2), which requires an attorney to cooperate with an investigation by responding within 20 days.
Vida was privately reprimanded in 2004.
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Public reprimand of Howard J. Young
The OLR and Howard Young, Middleton, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement and issued the public reprimand on April 24, 2009, in accordance with SCR 22.09(3). The public reprimand stemmed from a single matter investigated by the OLR.
Young was hired by a woman to assist her in preserving her father’s Veterans Administration (VA) benefits, which were scheduled to be suspended pending the establishment of a guardianship. At the outset, there was some confusion between Young and his client regarding the exact nature of the required VA filing. The client paid Young $1,000. Young did not complete the paperwork necessary for the guardianship before the date the benefits were suspended, and he failed to take action to resolve the confusion concerning the nature of the required filing. The woman terminated the representation. Young acknowledged receiving three written demands from the client for a refund of unearned fees and for an itemized accounting of the services rendered. Young did not provide a timely refund or an accounting to the client, although approximately 18 months after the termination of the representation, while the client’s grievance was pending with the OLR, Young refunded the full $1,000 fee to the client. In addition, Young failed to fully answer the OLR’s supplemental inquiries during the investigation into the grievance.
By failing to timely advance his client’s interest and complete work on a guardianship knowing that benefits would be suspended and by failing to take action to resolve a dispute concerning the nature of the required filing, Young failed to act with reasonable diligence and promptness in representing the woman, in violation of SCR 20:1.3.
By failing to respond to his client’s written demands for a refund and for an itemization of services, Young violated SCR 20:1.5(b)(3), which states, “A lawyer shall promptly respond to a client’s request for information concerning fees and expenses.”
On termination of representation, Young violated SCR 20:1.16(d) by failing to calculate and to timely refund any portion of the advanced fees.
By failing to respond fully to the OLR’s supplemental requests, Young violated SCR 22.03(6).
Young was privately reprimanded in 1999.
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Disciplinary proceeding against Dennis J. Ryan
In a May 29, 2009, decision, the supreme court publicly reprimanded Dennis J. Ryan, Madison. Disciplinary Proceedings against Attorney Ryan, 2009 WI 39. The court’s findings and conclusions followed a stipulation entered into by Ryan and the OLR, and the filing of a report by a court-appointed referee.
Ryan engaged in misconduct in two matters. In the first matter, Ryan represented a man convicted in federal court of criminal offenses. The court imposed special administrative measures (SAMs) on the man’s confinement. Ryan violated former SCR 20:7.3(c) by initiating unsolicited telephone contact with the man’s family for the purpose of obtaining professional employment. Ryan violated SCR 20:1.3, which requires a lawyer to represent a client with reasonable diligence and promptness, by failing to advance the client’s interests on his appeal or in his challenge to the SAMs. Ryan’s $10,000 fee in the matter was unreasonable and he thus violated former SCR 20:1.5(a). In addition, Ryan failed to properly explain the nature of his proposed fee and the legal services that he would provide in exchange for the fee, in violation of former SCR 20:1.5(b). Finally, Ryan violated former SCR 20:1.16(d) by failing to refund any portion of the $10,000 fee after his representation had been terminated, when he had not earned a fee of that amount.
In the second matter, Ryan represented a separate client in two criminal cases. In violation of SCR 20:1.5(b)(3), Ryan did not respond to the client’s request for a detailed billing.
In addition to the public reprimand, the court ordered Ryan to pay restitution of $8,000 by July 1, 2009, to the father of the client in the first matter. The court further ordered Ryan to provide a detailed billing statement to the client in the second matter.
In its decision, the court noted that “several of the primary shortcomings identified in this disciplinary proceeding involve the specific issue of fees, including the establishment of a reasonable fee, the communication of that fee to the client, the calculation of that fee and the assessment of its reasonableness, and the return of unearned fees.” The court therefore ordered that for two years from May 29, 2009, Ryan is to promptly provide to the OLR, “upon request, any and all fee agreements, trust account records, billing records, written or electronic communications with clients or prospective clients regarding fees or costs, and related materials.”
Finally, Ryan was ordered to pay the cost of the disciplinary proceeding.
Ryan had no prior discipline.
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Public reprimand of Alysia E. La Counte
The OLR and Alysia E. La Counte, Madison, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement, and issued the public reprimand on April 16, 2009, in accordance with SCR 22.09(3). Public Reprimand No. 2009-OLR-7.
La Counte’s firm represented a federally recognized Indian tribe in various matters, including membership and election disputes and efforts to amend the tribe’s constitution. The firm hired La Counte’s husband and another attorney on a contract basis to perform work related to the firm’s representation of the tribe. La Counte and her law partner did not supervise the contract attorneys’ work and allowed La Counte’s husband to be the attorney primarily responsible for some portions of the representation.
La Counte engaged in a course of conduct in which she and her firm held out La Counte’s husband as an employee, associate, or partner in the firm and allowed him to hold himself out as “of counsel” to the firm, when at all times he was a contract attorney, independent of the firm. In doing so, La Counte violated SCR 20:7.5(d), which states, “Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact,” and SCR 20:8.4(a), which states, “It is professional misconduct for a lawyer to … violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”
Without the tribe’s understanding and consent, La Counte caused and allowed the firm to charge the tribe a $35-per-hour markup on the hourly contract-attorney rate paid by the firm and a $70-per-hour markup on contract-attorney travel time. In doing so, La Counte violated former SCR 20:1.5(e), which stated, “A division of fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of and does not object to the participation of all the lawyers involved and is informed if the fee will increase as a result of their involvement; and (3) the total fee is reasonable.”
La Counte violated former SCR 20:1.15(b) by failing to timely comply, or cause her firm to timely comply, with the tribe’s reasonable requests for a full accounting of the advanced fees and costs delivered to the firm by the tribe.
La Counte violated SCR 20:8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation, by sending or causing her firm to send documents to the tribe that misrepresented that the firm had made a loan to the tribe and that several disbursements of the tribe’s funds held in trust represented payments on that purported loan.
After disputes occurred within the tribe concerning its governance, an interim tribal council terminated the firm’s representation of the tribe. At the direction of some of the deposed tribal council members, and contrary to the tribe’s interests as determined by its interim council, the firm thereafter represented those deposed members and purported to represent the tribe in litigation efforts to reinstate the deposed tribal council members. The firm also represented certain tribe members who supported constitutional amendment efforts, contrary to the tribe’s interests as determined by its elected council. In each instance, the firm acted without having obtained the tribe’s written consent to the adverse representation. La Counte violated former SCR 20:1.9(a), which stated, “A lawyer who has formerly represented a client in a matter shall not … thereafter represent another person in the same or a substantially related matter in which the person’s interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation.”
As a condition of the public reprimand, La Counte agreed to pay restitution to the tribe of $36,680.
La Counte had no prior discipline.
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