h3>Private Reprimand Summaries

The Wisconsin Supreme Court allows the Board of Attorneys Professional Responsibility (BAPR) to publish for educational purposes in an official State Bar publication a summary of facts and professional conduct rule violations in matters in which BAPR has imposed private reprimands. The summaries do not disclose information identifying the reprimanded atttorneys.

The following summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems. Some of the summaries indicate violations of the rules that were in effect prior to Jan. 1, 1988. The current rules proscribe the same types of misconduct.

Conflict of interest

Violations of SCR 20:1.7(b) and 20:1.8(a)

A woman consulted an attorney concerning her options for dealing with a balloon payment on her mortgage. The woman decided to refinance the land contract. The attorney, who also holds a license to broker mortgages, could not locate a conventional lender, and the woman did not make the final payment, so the land contract vendors began foreclosure proceedings. The woman retained the attorney's law office to represent her in the foreclosure proceedings.

Prior to foreclosure, the attorney located a private investor who was willing to refinance the woman's land contract. The attorney's broker's fee was contingent upon closing the loan.

At the closing, the woman was reluctant to go forward with this transaction. The attorney told her that she need not sign the loan papers that day, but he could not guarantee that the investor's funds would be available thereafter.

The Board of Attorneys Professional Responsibility (BAPR) found that the attorney acted contrary to SCR 20:1.8(a) by serving as the woman's mortgage broker while he was defending her in a foreclosure action. BAPR also found that the attorney acted contrary to SCR 20:1.7(b) by representing the woman at a closing on a loan that he had brokered, without her written consent, under circumstances in which his broker's fee was contingent upon closing the loan, and after the woman expressed reservations concerning the merits of the loan.

BAPR conditioned its offer of a private reprimand upon the attorney's submission of a written plan indicating how he will avoid conflicts like the ones that arose in this case. The attorney satisfied that condition by agreeing not to serve as both attorney and mortgage broker for any past or future clients.

Fairness to opposing party and counsel

Violations of SCR 20:3.4(e), 20:8.4(g) and 40.15

An attorney represented two defendants in a criminal proceeding. During the closing argument, the attorney stated that the district attorney had intentionally proffered false testimony when he put a witness on the stand whom the district attorney knew would not testify truthfully.

BAPR found that in accusing the district attorney of knowing that the witness would not testify truthfully, when there was no admissible evidence in support of that accusation, the attorney violated SCR 20:3.4(e). BAPR also found that the attorney's conduct in accusing the district attorney of knowingly offering false testimony violated SCR 20:8.4(g) and SCR 40.15, that portion of the Attorney's Oath which provides that "I will maintain the respect due to courts of justice and judicial officers."

Lack of diligence and communication regarding a criminal appeal

Violations of SCR 20:1.3 and SCR 20:1.4(a)

In or about June 1995 an attorney was appointed by the State Public Defender's Office to represent a woman regarding an appeal. Between June 1995 and October 1996, the attorney failed to meet or speak with the client regarding the representation and also failed to file either an appeal or a no-merit report in her case, despite having advised her by mail that a no-merit report would be filed. In July 1996 the attorney sought and obtained an extension from the court of appeals, but thereafter failed to meet with the client or take any further action on the matter prior to the August 1996 deadline imposed by the appellate court.

BAPR concluded that the attorney thereby failed to exercise reasonable diligence in representing the client, in violation of SCR 20:1.3. BAPR further found that the attorney failed to communicate with the client regarding her case, despite a number of requests that were relayed by the client's mother, and despite a letter from the State Public Defender's Office relaying the client's concerns and requesting information on the status of her appeal. The attorney thereby failed to promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

False statement to a tribunal; misrepresentation

Violations of SCR 20:3.3(a)(1) and 20:8.4(c)

An attorney was retained by a widow to probate her husband's estate. In a probate proceeding, the attorney told the court that he had had extensive conversations with the widow about marital property issues.

After the attorney had ceased representation on the estate, he was retained by a person to seek partition of certain real estate held in joint tenancy by the person and the widow. In response to a motion seeking the attorney's removal from the partition action because of the alleged conflict with his prior representation of the widow's husband's estate, the attorney asserted that he had not consulted with the widow about the estate.

BAPR found that the attorney made contradictory statements to the probate court and the court presiding in the partition action about the extent of his communications with the widow, contrary to SCR 20:3.3(a)(1), which requires candor toward a tribunal.

In an unrelated matter, the attorney represented a group of citizens in the filing of a petition with a state agency. The petition included many pages of signatures. On each page of signatures was a certification section stating the signer of the certification knew the persons whose signatures appeared on the page and had witnessed their signatures on it. The attorney signed the certification sections on approximately 28 pages of signatures, even though the attorney had not witnessed all of the signatures on any of those pages. The petition would have been valid had the certification sections been left blank, and the attorney's signing of the certifications did not affect the petition's validity.

In mitigation, the attorney had made an agreement with the state agency that he would act as coordinator of the documents, sign them, and file them as a single submission. In keeping with that agreement, the state agency was aware at the time the certified signature pages were filed that the attorney had not, in fact, witnessed all of the signatures.

BAPR concluded that by certifying that he had witnessed signatures that were, in fact, signed outside of his presence, the attorney violated SCR 20:8.4(c), which proscribes conduct involving misrepresentation.

The attorney had no prior discipline.

Practicing law while administratively suspended

Violations of SCR 20:5.5(a) and SCR 22.26(2)

On Sept. 30, 1996, the State Bar sent an attorney a certified letter to his home address advising him that he would be suspended as of Oct. 31, 1996, if his Bar dues were not paid by that time. By certified letter, dated Nov. 5, 1996, the State Bar advised the attorney that his license had been suspended for failure to pay Bar dues. On Jan. 27, 1997, after checking with the Bar, a client of the attorney confronted the attorney with the fact that he was suspended. The following day, the attorney paid his dues and was immediately reinstated. The attorney acknowledged that the letters from the Bar were brought to his attention and that he practiced law while administratively suspended. However, he asserted that he did not read the letters and did not realize he had been suspended until his client informed him. BAPR found that the attorney's failure to carefully read the letters from the Bar, or read them at all, was not an acceptable excuse for practicing law while administratively suspended. BAPR found that the attorney's conduct violated SCR 20:5.5(a) and 22.26(2).

Failure to consult; conflict of interest; misrepresentation to court

Violations of SCR 20:1.4(b), 20:1.7(b), and 20:3.3(a)(1)

An attorney represented the husband in a divorce. While the divorce was pending, the attorney undertook to represent both husband and wife as joint debtors on a bankruptcy petition, without obtaining a written conflict waiver from the wife, in violation of SCR 20:1.7(b). The attorney did not explain to the wife her options under the bankruptcy code, in violation of SCR 20:1.4(b). Having failed to explain to the wife her options under the bankruptcy code, the attorney, in violation of SCR 20:3.3(a)(1), nonetheless signed a statement on the petition asserting that he had informed the debtors that they could proceed under chapters 7, 11, 12, or 13, and had explained the relief available under each chapter.

Conduct involving dishonesty, fraud, deceit or misrepresentation

Violation of SCR 20:8.4(c)

Subsequent to a lawyer's graduation from law school and admission to the State Bar of Wisconsin, the law school learned that while writing for a student publication, the lawyer had plagiarized an article that had appeared in another student publication. Disciplinary proceedings were conducted by the law school, which determined that while a law student, the lawyer had knowingly and deliberately plagiarized words and ideas from an article published by a student in another state. The law school also found that on two occasions, the lawyer denied any deliberate and knowing plagiarism. When the lawyer subsequently was confronted by law school authorities, the lawyer admitted she had deliberately plagiarized her article from the other student's article.

BAPR determined that the lawyer's conduct in initially denying that she had plagiarized the article during the investigation by the law school constituted conduct involving dishonesty, fraud, deceit, or misrepresentation, contrary to SCR 20:8.4(c).

The attorney had no prior disciplinary history.

Failure to return a client's file, to discuss the basis or rate of a fee, and to communicate

Violations of SCR 20:1.16(d), 20:1.5(b), and 20:1.4(a)

An attorney was privately reprimanded on the basis of three separate grievances. In the first grievance, a client retained the attorney to file an appeal. Three weeks before the appellate deadline, the attorney informed the client that an appeal should not be pursued and withdrew. The client's file was not returned for three months thereafter, and BAPR found that to be a violation of SCR 20:1.16(d).

In the second grievance, a client paid the attorney $500 to represent him regarding a civil matter. There was no discussion about whether this fee represented the total fee, a retainer fee, or a deposit against an hourly fee. When the client discharged the attorney just a few weeks later, the attorney refused to refund any part of the $500 fee, stating that the fee was nonrefundable and that he had done sufficient work to warrant the fee. BAPR concluded that by not discussing the basis or rate of his fee with the client, however, the attorney had violated SCR 20:1.5(b).

In a third matter, the attorney was paid a $2,500 retainer for representing a client on criminal charges. The attorney failed to respond to phone calls and failed to keep the client informed about the status of his case, contrary to SCR 20:1.4(a). When the attorney was discharged, he refused to refund any part of the retainer fee, claiming that it was a nonrefundable retainer. However, the client indicated there was no discussion about a retainer fee or whether the fee was refundable, and believed that the $2,500 would cover the full representation. The State Bar Fee Arbitration Panel reviewed the situation and concluded that the attorney should refund $1,500. BAPR found that the attorney violated SCR 20:1.5(b) by failing to communicate the basis or rate of his fee within a reasonable time after commencing the representation.

The attorney had no prior discipline.

Lack of diligence, failure to communicate

Violations of SCR 20:1.3 and 20:1.4(a)

From the time of her Aug. 29, 1994 appointment to provide appellate-level representation to a criminal defendant, until her Dec. 2, 1996 motion to withdraw from the case, an attorney failed to take steps to either pursue an appeal or file a no-merit report, contrary to SCR 20:1.3. In violation of SCR 20:1.4(a), the attorney did not meet with her client until January 1995, and, when the client sought information from the attorney in a letter dated June 2, 1996, he had not heard from her in 17 or 18 months.

The attorney had no prior discipline.

Untimely withdrawal

Violation of SCR 20:1.16(d)

An attorney represented a client in a divorce. At the time of the final divorce hearing, the client was living out of state. One week before the final hearing, the parties agreed to the terms of a Marital Settlement Agreement. The client was to sign the agreement before leaving the state, obviating the need for a final hearing. Allegedly because of a snowstorm, however, the client left without signing the agreement.

The attorney appeared at the final divorce hearing a week later, but his client did not. The attorney told the court that he had no idea where his client was and made a motion to withdraw. The judge granted the attorney's motion, indicating that he intended to accept the terms of the unsigned Marital Settlement Agreement. After the attorney left the courtroom, however, the judge changed many of the terms of the unsigned agreement to the client's detriment.

BAPR concluded that by withdrawing from representation in the midst of the final divorce hearing, without any notice to his client, the attorney violated SCR 20:1.16(d) which says that, 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 and allowing time for employment of other counsel.

Failure to provide competent representation, charging an unreasonable fee

Violations of SCR 20:1.1 and 20:1.5(a)

An attorney had practiced law for more than 50 years. He was in poor physical health and had not practiced out of his law office for some time. The attorney nevertheless accepted a $500 retainer to represent a client with regard to her probation revocation. The only work the attorney did for the client was to call her probation officer to ask that the client be released from jail pending her revocation hearing. When the probation officer refused, the attorney also called two legislators he knew to complain about the probation officer and to advocate for the client's release. The attorney gave the client advice about her comportment at the revocation hearing, but did not appear on her behalf.

BAPR concluded that the attorney failed to provide competent representation to the client, contrary to SCR 20:1.1, and charged an unreasonable fee, contrary to SCR 20:1.5(a), since he provided no services that were of benefit to his client. The private reprimand was conditioned upon the attorney refunding the client's $500 fee, which the attorney did.

The attorney had no prior discipline.

Neglect, failure to communicate with a client in a real estate matter

Violations of SCR 20:1.3 and SCR 20:1.4(a)

In 1992 an attorney represented the seller in a real estate sale. The sale was closed in escrow because there was an unresolved boundary-line dispute that prevented the seller from being able to convey clear title to the entire parcel. The seller's attorney agreed to do the legal work necessary to clear the title. In 1993 the attorney concluded it would be almost impossible to determine which defendants should be named in an action to clear title, but the attorney did not communicate his conclusion to the client.

Nothing further happened until the summer of 1995, when the attorney discovered that a surveyor had filed a correction affidavit in March 1992 that would allow the matter to be resolved without litigation. The real estate transaction was completed in May 1996. While the matter was pending, the attorney failed to respond to calls and letters from his client asking about the status of the case.

BAPR concluded that the attorney neglected the matter, contrary to SCR 20:1.3, and failed to communicate with his client, contrary to SCR 20:1.4(a).

The attorney had no prior discipline.

Lack of competence; conduct involving dishonesty, fraud, deceit, or misrepresentation in an estate/probate matter

Violations of SCR 20:1.1 and SCR 20:8.4(c)

In 1991 the lawyer's mother, a widow, executed a durable power of attorney naming the lawyer as her attorney-in-fact. The power of attorney did not authorize the lawyer to make gifts. The lawyer's mother died intestate in November 1992 and was survived by the lawyer, his sister, and the children of a sister who had predeceased her mother.

Shortly before his mother's death and using the power of attorney, the lawyer transferred assets in excess of $85,000 that were solely owned by his mother, including shares of stock, a bond, a residence, a bank account, and an automobile, to the lawyer's son and to the lawyer's living sister. By transferring the assets before his mother's death, the lawyer reduced the value of her estate to less than $10,000. The lawyer closed his mother's estate by affidavit, and the three children of the deceased sister received nothing.

BAPR concluded that the lawyer's reliance upon the power of attorney to transfer the assets when the power of attorney did not provide the lawyer with authority to make such gifts, violated SCR 20:1.1, which requires an attorney to employ the requisite legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. BAPR also concluded that the lawyer had no actual intent to deprive the children of his deceased sister of a share of the lawyer's mother's estate.

The lawyer also prepared income tax returns for his mother for the years 1985 through 1991 on which the mother claimed rental property depreciation for a residence that she had already deeded to the lawyer in 1981 (a conveyance that was not recorded until after the mother's death). On the tax returns, the lawyer's mother also reported dividend and interest income on securities, although the lawyer contended that his mother had endorsed the certificates and transferred the securities to him in 1981. BAPR concluded that by preparing such returns, the lawyer violated SCR 20:8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Failure to communicate, to return property, and to cooperate

Violations of SCR 20:1.4(a), 20:1.16(d), 22.07(2), and 21.03(4)

In the spring of 1996, a man contacted an attorney to pursue a motion for post-conviction relief. In June 1996 the attorney advised the man that he required a $2,500 retainer. The attorney was provided with a $2,500 check in November 1996. According to the attorney, in December 1996 and January 1997, he sent the man a fee agreement and advised the man that he would not deposit the check until the man returned the signed fee agreement. The man denied receiving these letters and did not provide the attorney with a signed fee agreement. In January, March, April, and May 1997, the man wrote the attorney regarding the status of his case. The attorney failed to respond. He also failed to respond to the man's calls. In his May 1997 letter to the attorney, the man requested that the attorney return his file and his retainer. The attorney did not return the file. The attorney had never cashed the retainer check and returned the original check to BAPR.

BAPR found that by failing to respond to the man's calls and letters, if simply to advise the man that he was not pursuing the matter until receipt of the signed fee agreement, the attorney failed to respond to reasonable requests for information, in violation of SCR 20:1.4(a). BAPR also found that the attorney's failure to return the man's file constituted a violation of SCR 20:1.16(d). Additionally, the attorney failed to respond to several letters and calls from BAPR staff and the district committee, in violation of SCR 22.07(2) and 21.03(4). The private reprimand was conditioned upon the return of the man's file. The attorney had previously been privately reprimanded for similar misconduct. However, BAPR did not give the prior private reprimand great weight as that conduct did not precede the misconduct in this instance.

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