Wisconsin Lawyer
Vol. 82, No. 5, May 2009

• Criminal Act (OWI 2nd) that Reflects Adversely on Lawyer’s Fitness to Practice
• Lack of Diligence; Failure to Communicate; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation
• Incompetent Representation; Lack of Diligence; Failure to Communicate
• Criminal Act Reflecting Adversely on Fitness to Practice
• Failure to Adequately Supervise Nonlawyer Assistants
• False Statement of Fact to Court; Misrepresentation to OLR
• Conflict of Interest with Former Client
• Lack of Diligence; Failure to Communicate; Failure to Timely Refund Unearned Fee
• Failure to Advance Clients’ Interests; Failure to Inform Clients of Merits of Case; Failure to Respond to Requests for Information
• Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation
  
• Misconduct through Another’s Acts; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Ordering Conduct of Nonlawyer Assistant that Violates Professional Conduct Rules
• Failure to Consult with Client when Deciding not to Pursue Claim; Failure to Communicate
• Engaging in Offensive Personality
• Unreasonable Fee; Dishonesty
• Failure to Hold Property in Trust
• Unreasonable Fee; Failure to Provide Client with Written Statements of Contingent Fee Settlement Proceeds
• Providing Legal Advice while License Suspended; Engaging in Unauthorized Practice of Law
• Failure to Communicate; Failure to Refund Fees
• Failure to Notify Interested Party, Provide Accounting, and Deliver Funds
• Lack of Diligence; Failure to Communicate in a Bankruptcy
• Lack of Diligence in Probate Estate
• Unreasonable Fee; Conflict of Interest; Failure to Communicate Fee Basis; Failure to Refund Unearned Fee

Criminal Act (OWI 2nd) that Reflects Adversely on Lawyer’s Fitness to Practice

An attorney was convicted of misdemeanor second-offense operating while intoxicated. The arresting officer observed the attorney’s vehicle weaving within its lane of travel and twice crossing the center line. The attorney failed field sobriety tests and his blood alcohol level was measured at 0.262. The attorney’s sentence included a fine and 16 days in jail with Huber privileges. 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.”

Lack of Diligence; Failure to Communicate; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

A person hired an attorney to represent him regarding the revocation of his extended supervision. After an unsuccessful administrative appeal of the revocation decision, the client asked the attorney to seek judicial review by filing a petition for a writ of certiorari. The attorney agreed to file the petition for $250.

The attorney failed to file the petition within the statutory time frame and failed to seek an extension of time to file the petition after he realized he had missed the deadline, and therefore failed to act with reasonable diligence and promptness, in violation of SCR 20:1.3. The attorney failed to timely inform the client that he had missed the deadline for filing the petition and failed to respond accurately to the client’s requests for information, and therefore failed to keep the client informed about case status and to comply with reasonable requests for information, in violation of SCR 20:1.4(a)(3) and (4).

After the deadline for filing the petition, the attorney falsely told the client that he would file the petition, and misrepresented to the client and the client’s mother that he had filed the petition, thereby engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c). The attorney misrepresented to the OLR that he had informed his client of the missed filing deadline within a few days of the client’s reconfinement hearing, contrary to SCR 22.03(6). The attorney refunded the $250 fee in the matter.

Incompetent Representation; Lack of Diligence; Failure to Communicate

A woman hired a lawyer to probate her mother’s estate. The lawyer applied for probate, but his subsequent delay in processing the estate caused the register in probate to issue multiple orders to show cause before the estate was closed.

The lawyer had handled the estate for approximately eight months when he stopped returning the client’s phone calls. In preparing a fiduciary tax return, the lawyer underreported certain investment income because the lawyer did not know if the investment was taxable. The lawyer’s error resulted in the IRS assessing interest and penalties. The lawyer reimbursed the estate only after the client filed a grievance, and the lawyer admitted that he should have paid an estimated tax.

The lawyer failed to provide competent representation, in violation of SCR 20:1.1, in connection with his handling of tax issues; the lawyer’s unreasonable delay violated SCR 20:1.3; and his failure to return phone calls violated former SCR 20:1.4(a) (effective before July 1, 2007).

Criminal Act Reflecting Adversely on Fitness to Practice

An attorney was arrested and charged with third-offense operating a motor vehicle while intoxicated, based on the following situation: A motorist saw a car being driven erratically and reported this to police. An officer near the scene located the car and observed it weaving in and out of traffic lanes and straddling the center line. After pulling the car to the roadside, the officer conducted field sobriety tests and determined that the driver (the attorney) was intoxicated. A breath test determined that the attorney’s blood alcohol concentration (BAC) was 0.125. A blood test conducted later placed the attorney’s BAC at 0.138.

The attorney pleaded guilty and the court sentenced the attorney to 80 days in jail with Huber privileges, revoked the attorney’s driver’s license for two years, and issued a fine of $1,200. The attorney reported the criminal offense to the OLR before entering the guilty plea.

By engaging in conduct resulting in a third conviction for operating while intoxicated, 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 misconduct was mitigated by the attorney’s lack of prior discipline and participation in counseling programs to address the underlying alcoholism. The reprimand included the condition that the attorney seek continued treatment for alcohol abuse and provide to the OLR, from the treating therapist, quarterly reports of treatment status for one year, commencing from the reprimand date.

Failure to Adequately Supervise Nonlawyer Assistants

An attorney received a private reprimand for failing, in general, to supervise his office staff in executing estate planning documents and for failing, in a particular client matter, to ensure that the client’s will, power of attorney, and other documents were executed in accordance with the law.

As a general practice, the attorney delegated the initial preparation of estate planning documents to a designated legal assistant, who prepared documents using forms or templates and client information dictated by the attorney. The documents were sent to clients before signing conferences held at the lawyer’s office. At the signing conferences, the lawyer would meet with clients to review and explain the documents. Office staff would make any changes needed. The lawyer also delegated to his assistant the responsibility of obtaining the clients’ and witnesses’ signatures. The lawyer typically did not participate in or supervise the formal signing of documents. The lawyer did not instruct his staff on the legal necessity of having testators sign or acknowledge documents requiring witnesses in front of the witnesses nor did he have written protocols in place to guide his assistants in the proper execution of estate planning documents. The lawyer was obligated to ensure that these legal documents were properly executed. He failed to have measures in place to meet this obligation and therefore violated former SCR 20:5.3(a) (effective before July 1, 2007).

In the particular estate-planning matter for which the lawyer was reprimanded, the firm prepared various documents, including a will, a power of attorney for health care, a durable power of attorney, and a revocable trust. The client signed the documents at the lawyer’s office but not in the presence of witnesses. The lawyer’s legal assistant obtained witness signatures and notarized the documents after the client had already signed the documents. The testator did not appear before the witnesses to acknowledge that she understood the contents of the will that she had signed, as required by Wis. Stat. section 853.03. The statements appearing above the witnesses’ signatures on each of the documents indicated that the document had been signed in the presence of the witnesses even though this was not the case. The law with respect to powers of attorney requires that the party and the witnesses sign the document at the same time (Wis. Stat. §§ 155.30, 154.03, 243.10). The lawyer’s failure to adequately supervise the process, resulting in improper execution of the documents, constituted a violation of SCR 20:5.3(b), which requires that 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 assistant improperly executed the estate planning documents by 1) having coworkers sign as witnesses when they had not witnessed the client’s execution of the documents, 2) notarizing documents not signed before her, and 3) allowing the client to sign an already notarized document. Had the lawyer engaged in this conduct himself, the conduct would have violated SCR 20:1.1, which states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The lawyer learned of the deficiencies in the estate planning process in a letter received from the client’s agent. The lawyer therefore violated SCR 20:5.3(c), which makes the lawyer responsible for the conduct of a nonlawyer assistant when the lawyer knew of the conduct and that conduct violated the Rules of Professional Conduct.

False Statement of Fact to Court; Misrepresentation to OLR

An attorney filed a foreclosure suit on behalf of a mortgage company against an incarcerated man and the man’s mother. The man contended that his signature on the mortgage was a forgery. The mortgage company moved for summary judgment. Consistent with amended pleadings filed in the matter, the circuit court granted judgment to the mortgage company only as to the mother’s one-half interest in the property.

The man filed an appeal. The court of appeals issued an order requiring the man to file a statement on transcript within five days or be subject to penalty under Wis. Stat. section 809.83. The man filed the statement about three weeks later than the five days called for in the order.

Before the man’s filing of the statement on transcript, a party with a successor interest in the subject property acted to satisfy the foreclosure judgment. Thereafter, the attorney stated in correspondence to the circuit court that the appeal commenced by the man had been dismissed. In fact, the appeal was pending, and the attorney did not file a motion to dismiss the appeal until two weeks after his letter to the circuit court, and the court of appeals did not dismiss the appeal until roughly three months after the attorney represented to the circuit court that the appeal had been dismissed. The attorney made a false statement of fact to a tribunal, contrary to SCR 20:3.3(a)(1).

In addressing the man’s grievance, the attorney misrepresented to the OLR that the court of appeals had issued a second order establishing a deadline for the statement on transcript, with dismissal as the resultant sanction for noncompliance; the court of appeals had in fact not issued a second order. The attorney violated SCR 22.03(6) by making a misrepresentation to the OLR during a grievance investigation.

Conflict of Interest with Former Client

In 1996 a lawyer represented the buyers and the sellers in a real estate transaction, including drafting an option to purchase. The option could be exercised 10 years after the initial real estate transaction. After the 1996 transaction, the buyers terminated their attorney-client relationship with the lawyer. In 2006 the buyers decided to exercise the option and the lawyer represented only the sellers, without obtaining the buyers’ written consent. This resulted in detriment to the buyers.

By continuing to represent the sellers’ interests to the detriment of the buyers, who were his former clients in a substantially related matter, without obtaining the buyers’ written consent, the lawyer violated former SCR 20:1.9(a) (effective before July 1, 2007).

The lawyer had no prior discipline.

Lack of Diligence; Failure to Communicate; Failure to Timely Refund Unearned Fee

A woman hired an attorney to represent a man who had his probation revoked and was serving a nine-month sentence. The woman paid the attorney $750 to file a motion seeking a sentence modification for the man.

The attorney failed to contact the man, failed to take any action on his behalf, and failed to respond to his letters asking about the status of the motion. Because the attorney failed to contact the man or to pursue action on his behalf, during the third month of his nine-month sentence the man filed a pro se motion, which was denied by the court. After the attorney learned that the man had filed a pro se motion, the attorney took no further action, did not inform the man or the woman of his decision to take no action, and did not respond to their letters. In four written communications to the attorney, the woman requested a refund. The attorney did not refund the fee until after a grievance was filed with the OLR.

By failing to timely advance the client’s interests and timely file a motion for a sentence modification, the attorney violated SCR 20:1.3, which provides, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

By failing to respond to the woman’s letters inquiring about the status of the case and failing to explain why he would take no further action after the pro se motion had been filed, the attorney violated SCR 20:1.4(a)(3) and (4), which provide, “A lawyer shall keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests by the client for information,” and SCR 20:1.4(b), which provides, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

By failing to timely refund the unearned fee, the attorney violated SCR 20:1.16(d), which provides, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.”

Failure to Advance Clients’ Interests; Failure to Inform Clients of Merits of Case; Failure to Respond to Requests for Information

An attorney agreed to represent two inmate clients regarding a possible 42 U.S.C. § 1983 claim relating to conditions of confinement in a Wisconsin prison. After reviewing the facts, the attorney concluded that the clients did not have a meritorious case. The attorney informed the clients he would continue to review the matter and did not inform the clients that he would not be filing a complaint on their behalf. The clients wrote to the attorney, who failed to respond timely to their requests for a status update.

By failing to advance the clients’ interests in any appreciable manner from the time of being hired (March 2004) until termination of the attorney-client relationship (in early 2008), including failing to commence an action or make any kind of filing in the matter on behalf of the clients, the attorney violated SCR 20:1.3, which provides, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

By failing to keep the clients informed of the status and merits of their case and failing to respond to numerous requests for information, the attorney violated former SCR 20:1.4(a) (effective before July 1, 2007), which provided, “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information”; and SCR 20:1.4(a), which provides in relevant part, “A lawyer shall … (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests by the client for information.”

Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

A licensed but nonpracticing attorney agreed to help an acquaintance defend a small claims collection action by drafting documents that the woman and her husband could file pro se. One of the documents was an affidavit to be signed by the husband’s mother attesting that the mother was fully responsible for paying any debt and that she had already paid the full amount owed. The attorney gave the affidavit to the woman and her husband with instructions that they should obtain the mother’s signature on the affidavit in front of a notary. When they returned the affidavit, however, it was signed but not notarized. They told the attorney that the mother could not leave her home to appear before a notary because of an infirmity.

Based on assurances from the woman and her husband that they had witnessed the mother sign the affidavit, the attorney notarized the signature himself. The mother thereafter contacted the plaintiff in the case and renounced the affidavit, indicating that she had not read the document completely and had not signed it in front of a notary.

The attorney appeared at a summary judgment hearing and acknowledged that he had notarized the affidavit without witnessing the mother’s signature or even talking to her. The court struck the affidavit and awarded summary judgment to the plaintiffs. By falsely notarizing the affidavit, the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, contrary to SCR 20:8.4(c). The attorney had no prior discipline.

Misconduct through Another’s Acts; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Ordering Conduct of Nonlawyer Assistant that Violates Professional Conduct Rules

A lawyer who was responding to an unemployment compensation claim of a former employee caused a witness’s affidavit to be prepared and notarized. After the affidavit was executed, the affiant called the lawyer requesting modifications be made to the affidavit. The lawyer directed his assistant as she typed the requested modifications into the word-processing document that contained the affidavit. The lawyer read the modifications to the affiant and told her that it would not be necessary for her to return to his office as long as she consented to using the signature page from the original affidavit for the modified affidavit. The affiant approved the modifications over the phone and consented to use of the signature page. The lawyer then directed his assistant to affix the original signature page to the modified affidavit. The modified affidavit was sent to the opposing counsel and to the agency investigator.

By making changes to the body of a previously-executed affidavit, advising the affiant that it would not be necessary for her to be present to review the modifications, obtaining consent from the affiant to the use of the signature page from the original affidavit, and directing his assistant to affix the original signature page to the modified affidavit, the attorney violated SCR 20:8.4(a) and (c), which state, “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,” and “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

The attorney violated former SCR 20:5.3(c)(1) by directing his legal assistant to engage in conduct that would have violated SCR 20:8.4(c) had the attorney engaged in the conduct himself.

Failure to Consult with Client when Deciding not to Pursue Claim; Failure to Communicate

An assisted-living facility (the client) hired a lawyer after it was cited for state regulatory violations and was barred from admitting new residents until the violations were rectified. The lawyer was hired to pursue a financial recovery against the state, a matter that was to be initiated by filing a required notice of claim. The attorney promised to file a notice of claim by a certain date.

After developing misgivings about the likelihood of success, the lawyer decided not to file a notice of claim, but he did not consult with the client about that decision. The client learned of the lawyer’s decision only after calling the lawyer for a status update several weeks after the promised filing date. The client subsequently called the lawyer three times but the lawyer did not return the calls. After receiving a letter from the client, the lawyer wrote to the client and promised to contact the client during the next week but did not do so.

By determining not to pursue a notice of claim and doing so without consulting the client, the lawyer violated former SCR 20:1.2(a) (effective before July 1, 2007). By failing to promptly inform the client of his decision not to file a notice of claim, failing to respond to phone calls, and failing to make promised contact, the lawyer violated former SCR 20:1.4(a) (effective before July 1, 2007). By failing to adequately explain to the client the ramifications of the decision to abandon the notice of claim and the options remaining to the client, the lawyer violated SCR 20:1.4(b). The lawyer previously had a public reprimand for unrelated misconduct.

Engaging in Offensive Personality

An attorney was privately reprimanded for engaging in offensive personality, in violation of the Attorney’s Oath, SCR 40.15, which is enforced via SCR 20:8.4(g). The attorney made sexually suggestive comments to a coworker over several years and, on one occasion, kissed her without her consent.

Unreasonable Fee; Dishonesty

In March 2005, an attorney agreed to represent a woman (the client) in a Social Security Administration (SSA) benefits claim on behalf of the client’s daughter. The client signed a standard contingent fee agreement, and the attorney proceeded to coordinate medical reports from professionals to establish the nature and extent of the child’s disability. In October 2005, the attorney informed the client that he did not believe the medical evidence sufficiently established a disability under SSA guidelines. In December 2005, the SSA scheduled a hearing, and the attorney then informed the client that he would not represent her at the hearing. The attorney thereafter sent the SSA and his client a letter stating, “Please be advised that our office no longer represents the above named claimant.”

The client represented herself at the SSA hearing and obtained a favorable decision. In June 2006, the SSA issued an award to the client and a $4,713.10 attorney fee award to the attorney. The attorney deposited the fee into his office operating account and sent the client a closing letter. The client objected to the fee, claiming that the attorney did not deserve a fee because he had withdrawn in December 2005. In October 2006, the administrative law judge disapproved the fee agreement in an amended order, and later an SSA district manager demanded the return of the $4,713.10.

The attorney thereafter filed a fee petition before the SSA seeking payment for his services and submitted an invoice demonstrating that the value of his services on behalf of the client and her daughter (on an hourly basis) was $2,200. The SSA denied the fee petition, and approximately three months later, the attorney refunded $4,713.10 to the SSA.

By collecting a contingent fee of $4,713.10 based on a fee agreement the attorney had previously terminated and retaining the fee for approximately 17 months based on a fee agreement that the SSA specifically disapproved, the attorney violated former SCR 20:1.5(a) (effective before July 1, 2007), which stated, in relevant part, “A lawyer’s fee shall be reasonable.”

In addition, by refusing to refund the $4,713.10 fee after having being been requested to do so by the SSA, and, by delaying refunding the SSA after having a fee petition denied, the attorney violated SCR 20:8.4(c), which states, in relevant part, “It is professional misconduct for a lawyer to … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

The attorney has no prior discipline.

Failure to Hold Property in Trust

A lawyer represented the buyer in a residential real estate transaction and deposited the buyer’s earnest money into the lawyer’s client trust account. The buyer’s offer to purchase was accepted. The seller’s lawyer instructed the buyer’s lawyer to deliver the earnest money, but the buyer’s lawyer continued to hold the funds in his trust account.

After inspections of the real estate, the seller and the buyer could not agree on what issues constituted defects that required repair. The buyer’s lawyer suggested placing a portion of the anticipated sale proceeds into escrow to use for repairs, but the seller’s lawyer declined and continued to request that the buyer’s lawyer deliver the earnest money. The seller offered to reduce the purchase price and proceed with the sale, but the buyer refused to purchase the home as is. The seller’s attorney instructed the buyer’s lawyer to deliver the earnest money or pay it to the clerk of court for future litigation. The buyer’s lawyer refused, declared the offer to be null and void for failure to cure defects, and returned the earnest money to the buyer.

By transferring earnest money from the client trust account to the buyer when the viability of the transaction and entitlement to the earnest money were disputed, the buyer’s attorney violated SCR 20:1.15(b)(1) and (d)(3) (effective before July 1, 2007).

Unreasonable Fee; Failure to Provide Client with Written Statements of Contingent Fee Settlement Proceeds

A company’s chief executive officer (CEO) hired an attorney to represent the company with respect to a class-action lawsuit that included one of the company’s suppliers as a defendant. The CEO signed a standard contingent fee agreement, which provided for a 33.33 percent attorney fee if settlement occurred before filing suit. By the time the CEO signed the fee agreement, the company’s supplier had agreed to settle the class-action suit for a minimum of $25 million, and class members were invited to submit claims. The CEO prepared the company’s class-action proof-of-claim form and gave it to the attorney.

Over the next four-and-a-half years, five checks from the class-action settlement fund, totaling $427,395, were distributed to the company through the attorney. After receipt of each settlement check, the attorney retained the portion to which he believed he was entitled under the contingent fee agreement and disbursed the remainder to the company. Altogether, the attorney retained approximately $137,000 in attorney fees. The attorney provided the company with a written settlement statement, showing the payment to the client and the method of its determination, for only one of the five settlement checks.

The company, under new management, sued the attorney for a return of what it believed to be unreasonable fees. After a trial, a court found that the attorney’s contingent fee was unreasonable and ordered the attorney to return $132,800 in fees and pay the costs of the action. The court of appeals upheld the circuit court’s decision, and the attorney paid the amounts ordered by the court.

By charging a contingent fee of approximately $137,000 based on a $427,395 class-action settlement award to his client, when the attorney had no expertise in antitrust or class-action litigation, the contingent fee agreement was signed after the class-action defendant involved with the client had already agreed to settle the class action for $25 million, the attorney spent no more than 24 hours monitoring the class-action lawsuit and performing administrative tasks for the client, and the attorney took no risk by entering into the contingent fee agreement, the attorney charged an unreasonable fee, in violation of SCR 20:1.5(a) (effective before July 1, 2007).

The attorney violated former SCR 20:1.5(c) (effective before July 1, 2007), by failing to provide his client with written statements for each of four settlement checks, showing how each amount distributed to the client was determined.

The attorney had no prior discipline.

Providing Legal Advice while License Suspended; Engaging in Unauthorized Practice of Law

An attorney whose Wisconsin law license had been suspended for noncompliance with mandatory CLE requirements worked as the director of legal affairs for a large, multinational corporation based in Washington state. During the time in which he worked at the company, Washington state prohibited a lawyer from providing legal services in the state if his or her license had been suspended.

By engaging in the practice of law or otherwise acting in a manner seeming to indicate authorization or qualification to practice law, while his law license was in fact suspended, the attorney violated SCR 10.03(4), which states, “Only active members may practice law. No individual other than an enrolled active member of the state bar may practice law in this state or in any manner purport to be authorized or qualified to practice law….” SCR 10.03(4) is enforceable through SCR 20:8.4(f), which states, “It is professional misconduct for a lawyer to: … (f) violate a … supreme court rule … regulating the conduct of lawyers….”

In addition, Washington state maintained an in-house-counsel rule requiring lawyers licensed to practice law in other states to obtain a limited license to offer legal services in the state. The attorney did not obtain a limited license to practice law while he worked as the company’s director of legal affairs. By practicing law in Washington state while his law license was suspended, the attorney engaged in the unauthorized practice of law in violation of SCR 20:5.5(a), which states, “A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; ….”

Later, the attorney continued to serve in a legal capacity in another more senior position with the same company, this time as vice president – legal. Even though the position was located overseas, the work involved the practice of law. By engaging in the practice of law or otherwise acting in a manner seeming to indicate authorization or qualification to practice law while his law license was suspended, the attorney violated SCR 10.03(4).

In addition, by engaging in the practice of law while working overseas as vice president – legal, while his Wisconsin license was suspended, the attorney violated SCR 20:5.5(a).

The attorney had no previous discipline.

Failure to Communicate; Failure to Refund Fees

A woman hired an attorney to represent her son in connection with possible criminal charges and school disciplinary proceedings. The attorney requested a flat fee of $15,000 to represent the son. The proposed fee did not include representation in the event criminal or disciplinary charges were in fact filed.

After several consultations with family members, the attorney prepared and the parents signed a fee agreement on Dec. 30, 2005. The fee agreement provided the following:

“These fees are not based on a per-hour calculation, but rather a lump sum basis. Should you choose to terminate our services, you are entitled to a detailed accounting of the time spent on your case and an amount commensurate with the standard in the field will be deducted from the money received and the balance will be returned.

“As a result of agreeing to represent [the son] in this matter, [the attorney] may be foreclosed from representing others who may be in search of an attorney. Due to the complexity of this case and immediacy of need for services to try to avert charges, [the attorney] may have to refuse representation of others seeking our legal services while this matter is pending because of our commitment to providing an array of time intensive services not offered by a traditional criminal defense approach, therefore $5,000 of this fee is non-refundable.”

The parents paid the fee by credit card, and the attorney deposited the entire $15,000 into the firm’s operating account.

The attorney and his office staff immediately conducted precharging investigation and legal research, prepared and administered internal assessments and polygraph examinations, and began preparing a defense to potential charges. However, it soon became clear that no charges were going to be filed against the son. The parents discharged the attorney and requested an accounting and a refund of any remaining fee balance.

Despite numerous written requests, and a promise by the attorney to provide a timely response, the attorney did not provide an accounting to the parents until almost three months after the initial request for an accounting. By failing to respond in a timely fashion to the repeated requests for an accounting and a refund, the attorney failed to promptly comply with reasonable requests for information, in violation of former SCR 20:1.4(a) (effective before July 1, 2007).

On receipt of the attorney’s accounting, the parents disputed several charges. The parents also noted that the accounting showed total fees of $9,218.55 up until the time of termination, but that the attorney still had not provided a refund from the $15,000 paid for the attorney’s services. The attorney refunded a total of $781.45 to the parents. The attorney calculated this refund by subtracting the value of the services performed ($9,218.55) from the “refundable” portion of the $15,000 fee ($10,000), concluding that $5,000 of the fee was nonrefundable.

The parents disputed the attorney’s assertion that any refund for early termination would only derive from the “refundable” portion of the total fee, or $10,000. According to the parents, the attorney specifically agreed during their fee negotiations that any refund for early termination would come from the entire $15,000. The attorney, not recalling the specifics of the fee negotiations with the parents, relied on the fee agreement, which specifically stated that $5,000 of the fee was “non-refundable.” However, the agreement also provided that should the client agree to terminate services, a refund in “an amount commensurate with the standard in the field will be deducted from the money received and the balance will be returned” (emphasis added). According to the attorney’s own accounting, services were provided having a value of $9,218.55. However, the attorney received payment from the parents of $14,218.55 (after refunding to them $781.45). The attorney therefore retained $5,000 in unearned fees belonging to the parents and failed to promptly refund the unearned portion of the fee on termination by the client. By failing to refund the unearned portion of the fee to the client’s family on being discharged, and continuing until consenting to a private reprimand, the attorney failed to take steps to the extent reasonably practicable to protect the client’s interests, including refunding any payment of fee that had not been earned, in violation of former 20:1.16(d) (effective before July 1, 2007) and current 20:1.16(d).

As a condition to the imposition of the private reprimand, the attorney agreed to refund to the parents $5,000, plus 5 percent interest.

The attorney had no prior discipline.

Failure to Notify Interested Party, Provide Accounting, and Deliver Funds

A man and his daughter created a partnership, and the father granted to the partnership by quitclaim deed his interest in real property. The father hired an attorney to handle the sale of the property by land contract. The attorney became aware of a cloud on the title. The attorney brought an action to quiet title on behalf of the partnership. During the litigation, the buyer made payments on the land contract. The attorney placed these payments in his trust account and then disbursed them to the father, without informing the daughter.

A dispute arose and the daughter hired successor counsel, who demanded an accounting from the attorney. The attorney failed to provide such accounting, failed to inform the daughter of the payments he had received on her behalf, and failed to deliver her share of the funds, in violation of former SCR 20:1.15(b) (effective before July 1, 2004), which provided that on receiving funds or other property in which his client or a third person has an interest, a lawyer shall promptly notify the client or third person in writing and promptly deliver the funds and render a full accounting regarding such property.

Lack of Diligence; Failure to Communicate in a Bankruptcy

A lawyer filed a Chapter 13 bankruptcy petition on behalf of a woman. The woman was named as the debtor and her husband was named as a nonfiling spouse. It was the fifth bankruptcy case the woman and her husband had filed over a seven-year period. Both the woman and the attorney asserted the purpose of the bankruptcy filings was to prevent foreclosure on the woman’s home.

After the woman’s mortgage holder obtained relief from an automatic stay, the woman’s home was sold at a sheriff’s sale and the sale was confirmed. Soon thereafter, the attorney filed a motion to release to the woman and her husband the surplus funds from the sale of the house. Neither the attorney nor the woman attended the motion hearing. The motion was granted and the funds were released to the woman and her husband, who quickly spent the money.

The attorney did not provide notice to the bankruptcy trustee that the motion to release the surplus funds had been filed and no duty to do so was present. Likewise, after the release of the funds, neither the attorney nor the woman informed the trustee that the surplus funds had been released. The woman’s discharge was denied based on the fact that, in disposing of the surplus funds, she had fraudulently transferred property of the bankruptcy estate.

The attorney conceded that although he filed the motion to have the funds released, he never took any steps to track its progress or otherwise discover if the motion had been granted.

The woman and her husband asserted that the attorney never explained to them that the surplus funds were an asset of the bankruptcy estate. The attorney asserted that he told the woman and her husband that she had a choice: She could either dismiss the Chapter 13 case and keep all the surplus funds, or proceed with the Chapter 13 case and pay half the surplus funds to the trustee. The attorney’s assertion that he had explained these options to the woman and her husband was found to lack credibility.

By failing to take steps to track the progress and status of the motion he had filed to release the surplus funds, the attorney violated SCR 20:1.3.

By failing to explain to his client that the surplus funds were assets of the bankruptcy estate and by failing to explain to the client her options regarding those funds, the attorney violated SCR 20:1.4(b).

Lack of Diligence in Probate Estate

An attorney was hired to probate the estate of a person who died intestate. The decedent’s son was appointed personal representative. While the estate was pending, an entity holding estate assets asked the attorney to submit specific documents, but the attorney did not respond.

The probate court issued delinquency notices for delay in filing an inventory and in closing the estate. The attorney responded by filing the inventory and by appearing in court and requesting extensions. The personal representative eventually asked the court to remove the attorney from the estate. Successor counsel determined it necessary to file tax returns for the preceding two years, and the estate was assessed penalties and interest on the delinquent tax returns.

Unreasonable Fee; Conflict of Interest; Failure to Communicate Fee Basis; Failure to Refund Unearned Fee

A woman hired an attorney to represent her nephew (the client) in a federal criminal case and paid the attorney a $9,500 advance fee. The attorney gave the woman a receipt that stated that the representation included legal services provided to the client starting on Nov. 1, 2004, which was before the fee was paid. The attorney billed against the advance fee at a rate of $225 an hour but failed to ensure that the client and his aunt knew about the rate.

The client was charged with conspiring with other persons to obtain cocaine in another state and transport the cocaine to Wisconsin for sale and distribution. Several trips in rental cars were made for that purpose. The client’s girlfriend paid for several of the rental cars and was a participant in some of the trips. After Nov. 1, 2004 but before the client’s detention in December 2005, the attorney spent several hours speaking with the client, the client’s relatives and girlfriend, and other persons about the client’s case. Around the time of the client’s detention hearing, the client told the attorney he would keep his appointed federal public defender and said the attorney should represent the client’s girlfriend if she was indicted. The attorney believed the client wanted him to apply the unused portion of the $9,500 to the girlfriend’s representation.

Before the girlfriend was arrested in May 2005, the attorney represented the girlfriend’s interests in certain matters, which included having her meet with authorities to provide information about the alleged criminal conspiracy. The attorney never became the girlfriend’s attorney of record because he learned that the U.S. Attorney planned to object based on the attorney’s prior representation of the client.

By charging $9,500 for his representation of the client when a fee of less than half that amount could be attributed to representing the client, applying a portion of the $9,500 to the client’s girlfriend’s representation, particularly when the girlfriend’s interests in a substantially related matter were in conflict with the client’s, and applying a portion of the $9,500 to an outstanding bill that was several years old, the attorney charged an unreasonable fee, in violation of former SCR 20:1.5(a) (effective before July 1, 2007).

By representing the client’s girlfriend with respect to potential criminal prosecution, when he had previously represented the client for alleged criminal conduct in which the girlfriend had taken part and from which her eventual criminal prosecution arose, and by encouraging the girlfriend to cooperate with authorities, without obtaining the client’s consent to the representation, the attorney represented a person whose interests were adverse to those of a former client, in violation of former SCR 20:1.9(a) and (b) (effective before July 1, 2007).

The attorney failed to explain to the client the basis or rate of his fee, failed to submit a billing statement to the client showing how the $9,500 had been used, and failed to give the client information about amounts purportedly due from a previous representation, in violation of former SCR 20:1.5(b) (effective before July 1, 2007).

Finally, the attorney failed to refund the unearned portion of the $9,500, in violation of former SCR 20:1.16(d) (effective before July 1, 2007). As a precondition of the reprimand, the attorney refunded $5,180 to the client’s aunt.

The attorney had no prior discipline.

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