Wisconsin Lawyer
Vol. 83, No. 11, November 2010
Public reprimand of Steven D. Johnson
The Office of Lawyer Regulation (OLR) and Steven D. Johnson, 41, Appleton, agreed to imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee thereafter approved the agreement and issued a public reprimand on May 12, 2010, in accordance with SCR 22.09(3).
On Sept. 4, 2009, Johnson pleaded no contest to an amended charge of one count of child abuse – recklessly cause harm, contrary to Wis. Stat. section 948.03(3)(b), a class I felony. The charge stemmed from an incident at Johnson’s home, involving a family member.
Johnson was sentenced to two years’ probation, sentence withheld, on condition that he 1) undergo counseling, testing, and treatment as recommended for anger management and alcohol and other drug abuse and comply with those recommendations; 2) pay fees and follow rules of supervision; 3) submit a DNA sample and pay the attendant fee; 4) have no contact with his former spouse; 5) have contact with his minor son only as allowed by family court orders; and 6) comply with all family court orders. Johnson also was ordered to pay court costs, including a DNA analysis surcharge, totaling $675.
By engaging in acts leading to a conviction of one count of a class I felony, Johnson 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.”
Johnson received a consent private reprimand in 2008 for a violation of SCR 20:8.4(b) that followed his entry of a no-contest plea to a charge of misdemeanor battery stemming from a domestic incident involving an adult. Johnson has no other prior discipline.
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Disciplinary proceeding against Ryan D. Lister
On Sept. 1, 2010, the Wisconsin Supreme Court suspended the law license of Ryan D. Lister, Wausau, for 60 days, effective Oct. 4, 2010. Disciplinary Proceedings Against Lister, 2010 WI 208.
Lister represented a woman in an impaired-driving case. Lister subsequently suggested to the client that she sue the county where she had been arrested regarding the jail personnel’s treatment of her while she was detained. The client signed a contingent fee agreement with Lister and paid him $500 for costs. Lister expended $364.40 for filing and postage costs but did not return the unused portion of the $500.
Lister filed a federal lawsuit on the client’s behalf but never served the county or the sheriff. The court sent notice to Lister of a telephone pretrial conference, but he failed to appear for it, and the lawsuit was dismissed. Lister did not tell the client that the case was dismissed.
The client could not reach Lister regarding the status of the case. The client consulted with another attorney, who told her that the case was dismissed. The client chose to hire the new attorney, but Lister delayed for two months in providing the case file.
The supreme court found that Lister failed to act with diligence, in violation of SCR 20:1.3; failed to communicate with the client, in violation of former SCR 20:1.4(a), applicable to conduct occurring before July 1, 2007; failed to return the file or unused portion of the costs advanced to the client, in violation of SCR 20:1.16(d); and failed to cooperate with a district committee’s investigation, in violation of SCR 21.15(4), 22.03(2), and 22.04(1).
The court ordered Lister to pay restitution of $135.60 (the unspent costs) and the cost of the disciplinary proceeding.
Lister’s license was suspended for five months in 2007. Lister also was publicly reprimanded in 1986.
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Disciplinary proceeding against Sandra K. Coplien
On Sept. 3, 2010, the supreme court suspended the Wisconsin law license of Sandra K. Coplien, Wheaton, Ill., for six months as discipline reciprocal to a May 19, 2008, Illinois Supreme Court order suspending Coplien from the practice of law for six months. Disciplinary Proceedings Against Coplien, 2010 WI 109.
The Illinois suspension order arose out of two counts of misconduct committed by Coplien in violation of the following Illinois Rules of Professional Conduct: 1.3, 1.4(a), 3.2, 8.1(a)(2), 8.4(a)(4), and 770. In the first count, Coplien’s client’s ex-spouse filed three separate petitions against the client regarding visitation and child support. Coplien failed to inform the client of these filings, failed to respond to the petitions, and missed court dates. Coplien failed to respond to the client’s numerous attempts to contact her by telephone. In the second count, Coplien failed to cooperate with the Attorney Registration and Disciplinary Commission (ARDC). Coplien did not file a written response nor was there any communication to the ARDC as to why she did not respond.
Coplien’s Wisconsin law license has been suspended since 2001 for failure to pay State Bar dues, but Coplien had no prior Wisconsin discipline.
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Petition to reinstate Thomas E. Warmington
A public hearing will be held at 9 a.m. on Wednesday, Jan. 12, 2011, before referee Hannah C. Dugan at the Milwaukee Bar Association on the petition of Thomas E. Warmington, Brookfield, to reinstate his Wisconsin law license. Any interested person may appear at the hearing and be heard in support of or in opposition to the petition for reinstatement.
In Disciplinary Proceedings Against Warmington, 212 Wis. 2d 657, 568 N.W.2d 641 (1997), the supreme court revoked Warmington’s law license based on misconduct in four separate matters, including trust account violations, failing to respond to a client’s telephone calls regarding her settlement, failing to return advance payments of fees, failing to diligently and competently represent a client, and failing to cooperate with the discipline authority in its investigation.
To be reinstated, Warmington has the burden of substantiating by clear, satisfactory, and convincing evidence that 1) he has the moral character to practice law in Wisconsin, 2) his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, 3) all his representations in his reinstatement petition are substantiated, and 4) he has complied fully with the terms of the order of suspension or revocation and with SCR 22.26.
Relevant information may be provided to or obtained from OLR investigator Lorry Eldien or OLR assistant litigation counsel Julie M. Scott, 110 E. Main St., Suite 315, Madison, WI 53703. The OLR’s toll-free number is (877) 315-6941.
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Disciplinary proceeding against Brian P. Mularski
On Sept. 10, 2010, the Wisconsin Supreme Court granted an SCR 22.19 petition for consensual license revocation filed by Brian P. Mularski, Milwaukee. Mularski’s petition acknowledged he could not successfully defend against the professional misconduct alleged in 11 client matters. Three of the matters were the subject of a pending disciplinary complaint. The remaining eight were the subject of ongoing investigations by the OLR. The court further ordered that, as a condition of any petition for reinstatement, Mularski provide an accounting and demonstrate he has made full restitution to those individuals aggrieved by his misconduct. Mularski also was ordered to pay the cost of the disciplinary proceeding. Disciplinary Proceedings Against Mularski, 2010 WI 113.
In the first matter, a woman hired Mularski to represent her in a personal injury case. Mularski failed to put his contingent fee agreement in writing, violating former SCR
20:1.5(c). Mularski informed a claims examiner that the client would settle for a certain amount without obtaining the client’s agreement to the amount, violating former SCR 20:1.2(a). Mularski failed to provide medical lien providers with written notice of his receipt of settlement funds and failed to satisfy the liens, violating former SCR 20:1.15(d)(1). In violation of former SCR 20:1.15(b)(1), Mularski disbursed on the client’s behalf funds in excess of what he was holding for the client, thereby disbursing funds belonging to another party. Mularski failed to maintain trust account records, in violation of former SCR 20:1.15(e)(6). Finally, Mularski made several misrepresentations to the insurer and his law firm, obtained the client’s signature on a release he had modified, and forged the client’s signature on the release sent to the insurer, all in violation of SCR 20:8.4(c).
In the second matter, Mularski represented a man regarding an automobile accident. Mularski failed to submit four of the client’s medical bills and failed to ensure payment was timely sent to three other medical-care providers, in violation of SCR 20:1.3, which requires diligent representation. In violation of SCR 20:1.4(b), Mularski failed to adequately explain to the client the amount of money he was holding to pay outstanding medical bills. Finally, Mularski indicated on a settlement statement that medical providers had agreed to certain bill reductions although they had not done so and falsely indicated to those medical providers that the client’s settlement was insufficient to cover the medical bills, all in violation of SCR 20:8.4(c).
In the third matter, an insurance company issued a settlement check made payable to Mularski’s firm, a client, and a medical center that had a lien on the settlement proceeds. Mularski failed to notify the medical center of the settlement and immediately distributed the settlement funds to the client, despite the existence of the lien, in violation of former SCR 20:1.15(d). Mularski endorsed the check on the medical center’s behalf when he did not have authority to do so, in violation of SCR 20:8.4(c). In violation of SCR 22.03(6), Mularski misrepresented to the OLR the circumstances under which he had endorsed the check and submitted to the OLR a fabricated letter he had allegedly sent to a collection agency, although the letter had not been sent and contained information contrary to the information Mularski had previously provided to the OLR.
In the fourth matter, Mularski was hired to represent a man in a personal injury case. After obtaining a settlement on the client’s behalf, Mularski failed to hold the funds in trust, failed to satisfy a medical lien, failed to maintain trust account records, and made misrepresentations to the OLR during its investigation. The OLR was investigating possible violations of SCR 20:1.15(b)(1), (d)(1) and (e)(6)
and 22.03(6), which is enforced via 20:8.4(h).
In the fifth matter, Mularski represented a woman in a personal injury case. After the statute of limitation had expired, Mularski filed a complaint alleging the accident had occurred one year later than it actually had. Mularski failed to inform the client that the lawsuit had been dismissed for failure to prosecute, instead forwarding to the client a fabricated release alleging to settle the matter. After making several misrepresentations to the client, Mularski eventually admitted he had made mistakes that would prevent her from collecting from the defendant’s insurance company. The OLR was investigating possible violations of SCR 20:1.3, former 20:1.4(a), 20:1.4(a)(3), former 20:3.3(a)(1), and 20:8.4(c).
In the sixth matter, a woman hired Mularski to file a claim against the city of Milwaukee. Mularski informed the client that a settlement had been reached and would be paid out over two years. The client began receiving monthly payments. After Mularski failed to respond to the client’s request for her file, she contacted the city of Milwaukee and learned that no claim had been filed and no settlement reached. Mularski admitted he had been making the payments from his personal funds. The OLR was investigating possible violations of SCR 20:1.3, former 20:1.4(a), 20:1.4(a)(3), and 20:8.4(c).
In the seventh matter, Mularski represented a man in a personal injury case that settled for policy limits. Mularski also settled with the driver individually for an additional sum of money. Mularski never produced any settlement documents or releases related to the case in the course of the OLR investigation. Mularski forwarded some of the settlement funds to the client but held others to pay medical-care providers. One provider was not paid, resulting in a judgment being entered against the client. The OLR was investigating possible violations of former SCR 20:1.4(a), 20:1.4(a)(3), and 20:8.4(c).
In the eighth matter, Mularski was hired to represent a woman in a personal injury case. After the matter settled, Mularski retained a portion of the settlement funds to pay various creditors. The creditors were not paid. Records indicate that Mularski forged endorsements on the checks made payable to the creditors and converted the funds for his personal use. Mularski eventually repaid his firm and the firm in turn paid the creditors. The OLR was investigating possible violations of SCR 20:1.15(b)(1) and (d)(1) and (2) and 20:8.4(b) and (c).
In the ninth matter, Mularski represented a woman in a small claims case. After he obtained a settlement on her behalf, he failed to take adequate steps to collect the judgment and misled her regarding an alleged court date. The OLR was investigating possible violations of SCR 20:1.3 and 20:8.4(c).
In the tenth matter, a man hired Mularski to represent him in personal injury and property damage cases. Mularski obtained settlements on the client’s behalf in both matters. Mularski admitted that he continues to hold funds on the client’s behalf, failed to act with diligence in representing the client, and failed to adequately communicate with the client. The OLR was investigating possible violations of SCR 20:1.3, 20:1.4(a)(3) and (4), and 20:1.15(d)(1) and (2).
In the eleventh matter, Mularski represented a woman in a personal injury case. Mularski asserted to the client that he had obtained a settlement on her behalf and sent her funds purporting to be the proceeds of that settlement. There is no evidence that a settlement was ever reached and the client never signed any settlement papers. The client claimed Mularski failed to communicate with her and that she never entered into a written fee agreement, despite Mularski’s representing her on a contingent fee basis. The OLR was investigating possible violations of former SCR 20:1.4(a), 20:1.4(a)(3), 20:1.5(c), and 20:8.4(c).
In 2006, Mularski was privately reprimanded for violations of SCR 20:1.3, former 20:1.4(a), and 20:8.4(c).
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Denial of reinstatement of Elvis C. Banks
On May 8, 2009, Elvis C. Banks filed a petition for reinstatement of his Wisconsin law license. Banks’ law license had been revoked in 2003. Disciplinary Proceedings Against Banks, 2003 WI 115. Both the Board of Bar Examiners and the OLR opposed Banks’ reinstatement petition. After conducting a public hearing, the referee issued a report recommending that Banks’ reinstatement petition be denied. By order dated Aug. 24, 2010, the Wisconsin Supreme Court denied Banks’ petition for reinstatement and ordered Banks to pay the cost of the reinstatement proceeding. Disciplinary Proceedings Against Banks, 2010 WI 105.
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Disciplinary proceeding against Carol J. Brown
On Aug. 18, 2010, the Wisconsin Supreme Court publically reprimanded Carol J. Brown, Madison, and ordered her to pay restitution and the cost of the proceedings. Disciplinary Proceedings Against Brown, 2010 WI 104.
Brown’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 the husband of Brown’s law partner and another attorney on a contract basis to perform work related to the firm’s representation of the tribe. Brown and her law partner did not supervise the contract attorneys’ work and allowed the partner’s husband to be the attorney primarily responsible for some portions of the representation.
In violation of SCR 20:7.5(d) and 20:8.4(a), Brown engaged in a course of conduct in which she and her firm held out her partner’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.
Without the tribe’s understanding and consent, Brown 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, Brown violated former SCR 20:1.5(e), in effect at the time of the relevant conduct, 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.”
On two occasions in 1999, Brown disbursed more funds than her firm held in trust and then arranged to draw on the firm’s line of credit to cover the disbursements. By causing the firm to use client funds held in trust to satisfy disbursements unrelated to the clients’ matters and then commingling firm funds in the trust account, Brown violated former SCR 20:1.15(a), in effect through June 30, 2004, which stated in pertinent part, “A lawyer shall hold in trust, separate from the lawyer’s own property, that property of clients and third persons that is in the lawyer’s possession in connection with a representation or when acting in a fiduciary capacity. … No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay or avoid imposition of account service charges, may be deposited in such an account.”
Brown 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.
Brown 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 took place 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 interests of the tribe as determined by its interim council, the firm thereafter represented those deposed members and purported to represent the tribe in efforts to reinstate the deposed tribal council members. The firm also represented certain tribal proponents of constitutional amendment efforts, contrary to the interests of the tribe as determined by its elected council. In each instance, the firm acted without having obtained the tribe’s written consent to the adverse representation. Brown 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.”
The court further ordered that Brown pay restitution of $36,680 to the Saginaw Chippewa Indian Tribe of Michigan, to be paid on the payment schedule set forth in the body of the court’s decision, and that Brown pay the cost of the proceedings.
Brown had no prior discipline.
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Disciplinary proceeding against Thomas H. Koch
On Aug. 25, 2010, the Wisconsin Supreme Court granted a SCR 22.19 petition for consensual license revocation filed by Thomas H. Koch, Milwaukee. Koch’s petition acknowledged he could not successfully defend against the professional misconduct allegations being investigated by the OLR, specifically one count of theft involving Koch’s conversion of funds he collected on behalf of a client. The court further ordered that, as a condition of any petition for reinstatement, Koch demonstrate he has made full restitution to or settled all claims of persons harmed by the misconduct. Disciplinary Proceedings Against Koch, 2010 WI 106.
On Feb. 22, 2010, Koch was charged in Milwaukee County Circuit Court with one felony count of violating Wis. Stat. section 943.20(1)(b), theft in a business setting greater than $10,000. Koch converted for his own use funds that he collected on behalf of his client from November 2001 until September 2008. Koch directed third parties to make subrogated-claim settlement checks payable to him or to his trust account so that he could convert some or all of the settlement funds. Koch’s client has calculated that Koch converted more than $2.4 million of its funds. According to the criminal complaint, Koch admitted he stole settlement money owed to his client.
Koch had no prior discipline.
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Disciplinary proceedings against Michael C. Trudgeon
On Aug. 13, 2010, the Wisconsin Supreme Court revoked the law license of Michael C. Trudgeon, Beloit, following Trudgeon’s stipulation admitting to or pleading no contest to 56 counts of misconduct in 13 client matters. In addition, the court ordered Trudgeon to pay restitution and the full cost of the disciplinary proceedings. Disciplinary Proceedings Against Trudgeon, 2010 WI 103.
Trudgeon’s law license was suspended effective May 27, 2008, for his failure to comply with mandatory continuing legal education reporting requirements. On July 28, 2008, his law license was suspended for his failure to cooperate with ongoing OLR investigations.
In the first matter, Trudgeon represented a client in a family law action. Trudgeon violated SCR 22.26(1)(c), via 20:8.4(f), by failing to promptly notify the court in the matter of the suspension of his law license. Trudgeon violated SCR 20:1.1 by attempting to negotiate a waiver of future child support on behalf of the client, when such an agreement is unenforceable in Wisconsin. Trudgeon violated SCR 22.26(2) and 31.10(1), via 20:8.4(f), by proposing terms for negotiation in a pending lawsuit at a time when his law license was suspended. Trudgeon violated SCR 20:8.4(c) by making misrepresentations to the OLR in correspondence and an affidavit. Trudgeon violated SCR 22.03(2) and 22.03(6), via 20:8.4(h), by failing to provide the OLR with a timely written response containing information it requested.
The court found that Trudgeon committed 51 additional violations in 12 other client matters. In several matters, the misconduct was similar to that committed in the first matter, in that Trudgeon engaged in dishonest conduct, failed to provide information as requested by the OLR, and failed to notify the court of his suspension.
Other misconduct involved his assertion that he represented an individual when he lacked the authority to do so, a lack of diligence in client matters, failure to communicate with clients, failure to refund an unearned fee, trust account violations, engaging in an ex parte communication with the court, and making a false statement to a tribunal. Trudgeon lied to his clients and, on at least one occasion, falsely authenticated a document. Trudgeon failed to appear for a scheduled pretrial conference in one matter and failed to appear at a jury trial in another matter. Trudgeon also failed to maintain confidentiality of files that he had left unsecured. In one matter, Trudgeon converted to his own use at least $24,500 of settlement funds he received on behalf of a client.
In addition to revoking his law license, the court ordered Trudgeon to pay the full cost of the proceedings and restitution of $27,412.
The court publicly reprimanded Trudgeon in 2009.
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Disciplinary proceeding against Kimberly Theobald
On Aug. 10, 2010, the Wisconsin Supreme Court suspended the law license of Kimberly A. Theobald, Waukesha, for 60 days, commencing Aug. 20, 2010. In addition, the court ordered Theobald to pay the cost of the disciplinary proceeding. Disciplinary Proceedings Against Theobald, 2010 WI 102.
The court found that Theobald, in the course of representing a client in a bankruptcy case, failed to act with reasonable diligence and promptness, in violation of SCR 20:1.3, and failed to communicate with the client, in violation of former SCR 20:1.4(a) (effective through June 30, 2007) and current SCR 20:1.4(a)(4). The client hired Theobald in September 2006 to file a bankruptcy petition. Theobald filed the petition in January 2007 but did not include a required form, the B22A means-test-calculation form, a deficiency brought to her attention by the bankruptcy trustee who, in February 2007, filed a motion to dismiss. Theobald did not object. At a March 2007 creditor’s meeting, Theobald was instructed to file the B22A form by close of the business day. Theobald failed to do so and the bankruptcy was dismissed.
Creditors began contacting the client, who attempted to contact Theobald. When the client finally spoke with Theobald in August 2007, Theobald told the client that she would look into the status of the bankruptcy. The client did not hear from Theobald. In the meantime, the client determined that the bankruptcy had been dismissed and faxed confirmation of the dismissal to Theobald in November 2007. Theobald took no action, and the client filed a grievance in February 2008.
In response to the grievance, Theobald acknowledged she had “royally dropped the ball on this matter” and promised to rectify the situation. In January 2009, the client notified the OLR that Theobald had not followed through on her promise to take corrective action. Theobald admitted the allegation and at that point refunded the entire amount the client had paid to her.
The court agreed with the referee’s determination that a 60-day suspension was appropriate given the purposeful nature of Theobald’s conduct, her number of years practicing law, and her past discipline, which consisted of public reprimands in 2004 and 2006 for similar misconduct.
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