Vol. 73, No. 5, May 2000

Lawyer Discipline - 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 attorneys.

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.

Public Reprimand Summaries

Communication with Represented Party
without Consent of Attorney

Violation of SCR 20:4.2

In late 1998 a husband and wife each were charged with one felony count of contributing to the delinquency of a child and one misdemeanor count of contributing to the neglect of a child, based upon the couple's failure to report their son as a runaway. The court appointed an attorney to represent the wife; another attorney represented the husband. The wife's preliminary hearing was held in early January, and she was bound over for trial. Because the husband failed to respond to a summons, his preliminary hearing was not held until March 24, 1999. The couple's son was subpoenaed to testify at the hearing, and the wife accompanied her son to the hearing. The wife was not subpoenaed. The prosecutor noticed that the wife was present in the courtroom, and called the wife to the witness stand. Despite the objections of the wife and the husband's attorney, the judge allowed the prosecutor to examine the wife, who was not given the opportunity to contact her attorney. The prosecutor had corresponded with the wife's attorney and was aware at the time that the wife was represented by counsel.

The Board of Attorneys Professional Responsibility (BAPR) concluded that by questioning the wife under oath without consent of the wife's attorney, and despite being aware that the wife was represented, the prosecutor communicated about the subject matter of a representation with a party that the prosecutor knew to be represented, without the consent of the party's attorney, in violation of SCR 20:4.2. The prosecutor had no prior discipline.

False Statement of Fact to Tribunal

Violation SCR 20:3.3(a)(1)

A man's dog bit another man. The victim sought reimbursement from the dog owner for his medical bills. The dog owner directed the victim to his lawyer. The victim and the lawyer worked out a settlement. However, before the dog owner paid the victim, a health care provider sued the victim for its unpaid bill. The victim called the lawyer and told him that he had "better take care of it," as the dog owner was responsible for the medical bills.

In an effort to resolve the dispute, the lawyer filed a Notice of Retainer and Answer in the lawsuit indicating that he was the attorney for the victim. In fact, the lawyer never represented the victim and never entered into an attorney-client relationship with the victim. The lawyer knew he did not represent the victim when he filed the Notice of Retainer and Answer indicating that he was the attorney for the victim.

BAPR found clear and convincing evidence that, when indicating in the pleadings that he was the attorney for the victim, the lawyer knowingly made a false statement of fact to a tribunal, in violation of SCR 20:3.3(a)(1). The lawyer had twice previously been suspended, for 12 months and for 18 months.

Failure to Provide Competent Representation

Violation of SCR 20:1.1

The attorney represented a client on felony burglary charges. A trial was scheduled for jury draw on Oct. 19, 1998, with trial on Oct. 20. On Oct. 19 the defendant told the court, in part, that he did not believe he had had sufficient time to discuss the case with his attorney. The court directed the attorney to meet with the client that afternoon to discuss a plea bargain offer, which was to expire at 3 p.m. The attorney met with the client in jail between 2 and 3 p.m. The attorney then left to speak with the prosecutor.

When the attorney returned to the jail a second time around 3 p.m., deputies noted that the attorney smelled of alcohol. When the attorney was told he would have to provide a breath sample before he would be permitted to enter the jail, the attorney consented. His breath tested at .07% blood alcohol content, and jail staff denied him access to the jail. The attorney met with the client later that evening without incident.

The following day, the client informed the court of the previous afternoon's events. The court allowed the client to discharge the attorney and granted a continuance for the client to find new counsel. Successor counsel was appointed, and the case went to trial in December 1998.
During BAPR's investigation, the attorney stated that he had consumed beer with friends from 4 to 10 p.m. on Sunday, Oct. 18. The attorney denied having consumed any alcoholic beverages between 10 p.m. Sunday evening and the time he was rejected from the jail at 3 p.m. on Monday, Oct. 19. A district professional responsibility committee concluded it could not rule out the possibility that the attorney's blood alcohol level on Monday was the result of excessive drinking the night before.

BAPR concluded the attorney violated SCR 20:1.1, which requires a lawyer to employ the requisite preparation reasonably necessary for competent representation. BAPR determined to impose a private reprimand, with the condition that the attorney undergo an AODA assessment by an agency approved by BAPR's administrator, provide a copy of the assessment results to BAPR, and follow the recommendations made in the assessment for one year.

Failure to Protect Client's Interests upon Withdrawal

Violation of SCR 20:1.16(d)

A man retained an attorney to pursue a personal injury claim against an entity that owned an establishment in which the man was injured when he fell over a railing on the establishment's second story level. The statute of limitations was set to run in six months.

Approximately two weeks before the statute of limitations was to expire, the attorney had a letter hand-delivered to the man that indicated the attorney's firm had decided that it could not represent the man and was withdrawing from the case. The letter also advised the man that in order to preserve his claim, an action would have to be filed before the statute of limitations expired and that the man could come and pick up his file.

Approximately four days prior to the expiration of the statute of limitations, the attorney prepared a summons and complaint and mailed them to the man with a letter containing instructions for the man to file the same with the Clerk of Courts before the expiration date.

BAPR determined that in failing to immediately notify the man of his firm's conflict and in failing to withdraw until approximately two weeks before the statute of limitations on the man's claim was to expire, the attorney failed to give appropriate notice of withdrawal and failed to take steps to the extent reasonably practicable to protect a client's interests, in violation of SCR 20:1.16(d).

The attorney had no prior discipline.

Lack of Diligence; Failure to Communicate with Client and Cooperate with Grievance Investigation

Violations of SCR 20:1.3, 20:1.4(a), 21.03(4),
and 22.07(2), and the Kennedy standard

An attorney represented a woman in a divorce granted in 1987. The attorney was responsible for drafting a qualified domestic relations order (QDRO), so as to effectuate the apportionment of the ex-husband's retirement benefits with a particular employer. In violation of SCR 20:1.3, the attorney never drafted the QDRO, even after receiving notice in June 1995 of the ex-husband's intention to begin drawing retirement benefits. Successor counsel in Wisconsin completed the matter in 1999. Prior to turning the case over to successor counsel, the client had hired an attorney in the State of Oregon, where she moved subsequent to the divorce, to assist her in bringing the matter to a close.

The disciplined attorney did not respond to status inquiries from the client or Oregon counsel, in violation of SCR 20:1.4(a). The attorney received the client's grievance by May 9, 1998, at the latest, and was required to submit a written response to BAPR within 20 days, but failed to submit a written response until March 17, 1999, contrary to SCR 21.03(4), 22.07(2), and the standard of conduct announced in State vs. Kennedy, 20 Wis. 2d 513, 123 N.W.2d 449 (1963).

Dishonesty, Fraud, Deceit or Misrepresentation; Lack of Diligence

Violation of SCR 20: 8.4(c) and SCR 20:1.3

An attorney who had been retained to probate an estate asked the personal representative to back-date a check for attorney fees. The attorney thereafter filed an inaccurate tax return on behalf of the estate. BAPR determined that such conduct was contrary to SCR 20:8.4(c), which proscribes conduct involving misrepresentation.

Further, the attorney never filed an inventory in the estate and contributed to unreasonable delays in obtaining a survey and an appraisal of real estate belonging to the estate. BAPR determined that the attorney violated SCR 20:1.3, which requires a lawyer to represent a client with reasonable diligence and promptness.

Failure to Provide Competent Representation; Lack of Diligence

Violations of SCR 20:1.1 and 20:1.3

An attorney was hired to represent the estate of a decedent who died testate in August 1993. The attorney failed to make inquiry to determine whether medical assistance had been paid on the decedent's behalf, even though the attorney knew the decedent had been in a nursing home before his death. In effectuating the November 1997 transfer of the decedent's real estate, the attorney failed to discover a medical assistance lien on the property that was clearly of record. Further, prior to making estate distributions, the attorney failed to comply with the statute requiring that the Wisconsin Department of Health and Family Services (DHFS) be provided with notice of the deadline for filing estate claims whenever medical assistance has been paid on a decedent's behalf. BAPR determined that in failing to discover that medical assistance had been paid to the decedent and in failing to take the medical assistance payments into account in handling transactions on behalf of the estate, the attorney violated SCR 20:1.1.

The attorney was hired in October 1993 to probate the estate, but did not commence probate until July 1995, and failed to close the estate until November 1999, in violation of SCR 20:1.3. After transferring the decedent's real estate in November 1997 and making distributions to beneficiaries in February 1998, the attorney received notice from DHFS of its $7,497.70 medical assistance lien, followed by another notice in April 1998 that DHFS would accept, in satisfaction of the lien, $4,285.63, which was the total net estate after payment of expenses. The attorney did not promptly address the matter of the outstanding lien, in violation of SCR 20:1.3. In March 1999 the attorney used his own funds to pay off the lien.

Lack of Communication; Lack of Diligence

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

An attorney was appointed as appellate counsel for an incarcerated client. The attorney reviewed the client's file and concluded there were no appealable issues, but the attorney did not communicate his conclusion to his client. The attorney also received a letter from the client, but did not reply. The attorney never communicated with the client during the seven months he represented him.

BAPR concluded that by failing to communicate in any manner with his client or respond to a letter from him, the attorney violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information. BAPR further found that by failing to communicate to the client the conclusion that there were no appealable issues in his case, the attorney violated SCR 20:1.4(b), which requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Finally, BAPR found that by failing to take any action after he determined that the client's case presented no appealable issues, the attorney violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client. BAPR found that the attorney's misconduct was mitigated by the lack of discernible harm to the client's legal interests and by the fact that the attorney had no prior disciplinary record.

Conduct Involving Deceit

Violation of SCR 20:8.4(c)

The attorney represented Mr. and Mrs. X, who were sued by a development corporation to collect for work it had performed on the Xs' real estate. The case was set for trial for mid-October 1998. A week before trial, the attorney asked plaintiff's counsel to agree to reschedule the trial to a date approximately six weeks after the initial trial date, due to a scheduling conflict, but plaintiff's counsel refused.

The attorney filed a motion for a continuance. During the hearing, plaintiff's counsel told the court that to his knowledge, Mr. and Mrs. X were continuing to attempt to sell their land. Plaintiff's counsel argued that if the court granted a continuance, the plaintiff might be prejudiced in the event that the Xs sold their land prior to the trial, in that the potential lien that the plaintiff might receive through docketing of a judgment would thereby be defeated.

In response, the attorney told the court that the purchase negotiations did not work out, and the real estate had been taken off the market. The attorney further stated that the property was not up for sale; that it was being rented out and managed; and that it was not in the Xs' future plans to sell the property. The attorney's request for a continuance was denied, and the case went to trial. The court found in favor of the plaintiff development corporation.

Subsequent to the trial, it was discovered that Mr. and Mrs. X had sold their land to the attorney's daughter under a land contract approximately one month before the October 1998 hearing on the continuance. The land contract was not recorded until three days after the hearing. Plaintiff's counsel alleged that the attorney had made false statements to the court at the October hearing regarding the status of the Xs' property.

BAPR found that the attorney violated SCR 20:8.4(c) for engaging in conduct involving deceit. BAPR voted for a private reprimand, with the condition that the attorney complete 12 hours of CLE approved ethics seminars within 180 days. BAPR found that the attorney's misconduct was aggravated by the attorney's failure to take remedial measures to inform the court when the attorney learned three days after the October 1998 hearing that the attorney's daughter had purchased the property in question a month earlier.

Improper Use of Lis Pendens in Personal Injury Matter

Violations of SCR 20:3.1(a)(3)

An attorney represented the father of a man killed in a drunk driving crash. The attorney filed a wrongful death action against the drunk driver. One day later, the attorney filed a lis pendens under the caption of the personal injury case against real property owned by the defendant and the defendant's wife. The personal injury action had no direct bearing on the title to the real estate that was the subject of the lis pendens. The wrongful death case was settled within three months, with the defendant's insurer tendering the policy limits. Although the attorney executed a release of lis pendens upon settlement of the case, the lis pendens was not released until nearly two years later. The defendant and his wife were unable to obtain a second mortgage on the property due to the existence of the lis pendens.

BAPR concluded that the attorney should have known or it should have been obvious to him that there was no basis for filing the lis pendens in the context of the personal injury action. The filing of the lis pendens, therefore, served merely to harass or maliciously injure the defendant and his wife in violation of SCR 20:3.1(a)(3).

Offering False Evidence in Criminal Matter

Violations of SCR 20:3.3(a)(4)

In December 1999 BAPR privately reprimanded an attorney for violating SCR 20:3.3(a)(4).
At a preliminary hearing the attorney, an assistant district attorney (ADA), presented the testimony of a codefendant as a witness against the defendant. On cross-examination by defense counsel, the witness was asked if he had been offered any consideration in exchange for his testimony. The ADA objected to the question, but the judge overruled the objection. The question was then read back, and the witness responded "no." In fact, the witness had entered into a cooperation agreement with the ADA a month earlier. (The ADA agreed to charge the witness with a misdemeanor and recommend probation in exchange for testimony against the defendant.) When the witness testified falsely, the ADA failed to take any remedial measures and allowed the testimony to stand, in violation of SCR 20:3.3(a)(4). Two months after the preliminary hearing, defense counsel learned of the cooperation agreement from the attorney for the witness and was only provided a copy by the ADA upon specific request. The attorney's status as a prosecutor, representing the public, was considered an aggravating factor in the misconduct.

Conflict of Interest; Application of an Illinois Rule in Wisconsin Disciplinary Matter

SCR 20:1.7(b) and 20:8.5(b)

Respondent, an attorney who practices in Illinois but also is licensed in Wisconsin, represented a client in a worker's compensation claim in Illinois and a related personal injury action in Wisconsin. Respondent retained a Wisconsin attorney to assist with the personal injury action, but continued to be involved in the case. The Wisconsin attorney had no direct contact with the client, and it was Respondent who prepared the answers to interrogatories and sent them to the Wisconsin attorney for filing.

The Wisconsin case was dismissed because the answers to interrogatories were not timely filed. Respondent undertook representation of the client in a malpractice action against the Wisconsin attorney. Even though the client gave his written consent to the representation, BAPR concluded that Respondent did not fully disclose the nature of the potential conflict and had an irreconcilable conflict between his own personal interests as a potential defendant in the malpractice action and his client's best interests. Pursuant to SCR 20:8.5(b) (the Choice of Law rule), the rule that was applied was the Illinois equivalent of Wisconsin's SCR 20:1.7(b), which prohibits an attorney from representing a client if the representation of that client may be materially limited by the lawyer's own interests.

Neglect; Failure to Communicate

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

The client, an Illinois resident, was injured in a slip and fall accident while on a job in Wisconsin and hired an Illinois attorney to represent him in both a worker's compensation case and a personal injury action. The Illinois attorney referred the Wisconsin part of the action to Respondent, but the Illinois attorney continued to have all contact with the client and assisted Respondent with the Wisconsin case.

Respondent sent the defendant's interrogatories to the Illinois attorney for the client's response, but Respondent failed to inform the Illinois attorney that the court had issued an order compelling the responses to be produced by a certain date. The responses were not timely filed, and the lawsuit was dismissed. Respondent failed to notify the client, through the Illinois attorney, that the case was dismissed and also failed to disclose that Respondent had brought a motion to reopen the case, which motion was denied when he failed to timely appear for the hearing. The client did not learn about the dismissal until four months later, after the Illinois attorney made several inquiries of Respondent.

BAPR concluded that by failing to timely pursue the client's action, resulting in dismissal of the action, the attorney failed to act with reasonable diligence and promptness, contrary to SCR 20:1.3. Furthermore, by failing to timely inform the client that the case was dismissed, the attorney also failed to keep a client reasonably informed about the status of a matter, contrary to SCR 20:1.4(a).

Adverse Party Communication; Disobeying Court Order

Violations of SCR 20:3.4(c) and 20:4.2

A husband consulted with an attorney about representing him in a divorce. Shortly thereafter, before the attorney had been formally retained, the attorney went to the wife's home, knowing that she was represented by counsel, to discuss a specific property division issue. The contact was an adverse party communication prohibited under SCR 20:4.2.

The husband subsequently retained the attorney and, as security for his legal fees, gave the attorney title to a truck that was marital property. At a temporary hearing, the wife was thereafter awarded exclusive use of the truck. The attorney nevertheless filed a lien on the truck with the Department of Motor Vehicles. A court commissioner subsequently ordered the attorney to vacate his lien, but the attorney stated that his client refused to file a lien satisfaction and the lien remained of record. BAPR concluded that the attorney could file the satisfaction himself and that his failure to do so violated a court order, contrary to SCR 20:3.4(c).

BAPR issued a private reprimand that was conditioned upon the attorney releasing his lien on the truck, which he did.

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