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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.

Incompetence, obtaining prospective malpractice waiver from client

Violations of SCR 20:1.1 and 20:1.8(h)

An attorney drafted a limited partnership agreement on behalf of a client (the general partner). The attorney thereafter failed (due to his general unfamiliarity with the subject) to ensure that the partnership acted in conformance with applicable law, particularly by accepting and accounting for funds placed by hundreds of investors in excess of the unregistered 15 permitted under the partnership, without first ascertaining whether those investments might also be exempt from registration under applicable law, in violation of SCR 20:1.1, which requires a lawyer to provide competent representation to a client.

Upon his release of $113,000 in investment funds to the client, without authorization from the Wisconsin Division of Securities or the client's then-securities counsel, the attorney obtained from the client a Release and Indemnification, under which the client agreed to hold the attorney harmless for any losses the client might incur as a result of the attorney's actions, "including but not limited to record keeping and trust account management," in violation of SCR 20:1.8(h).

The attorney had no prior discipline.

Incompetence, Neglect, Failure to Communicate, Disclosing Confidences, and Fee-Splitting

Violations of SCR 20:1.1, 20:1.3, 20:1.4(a) and (b), 20:1.6(a), and 20:1.5(e)

The attorney represented a plaintiff in a personal injury action. Less than two months before trial, the attorney, without the client's knowledge or consent, asked another attorney to assist with trial of the case and agreed to split the fees with the assisting lawyer.

A new judge was appointed nine days before trial, requiring a request for substitution to be filed within 24 hours of receipt of the assignment notice. Without any consultation with the client, the assisting attorney allegedly filed a request for substitution via regular mail, rather than faxing or hand-delivering it so that it would be received within the 24-hour deadline. The request was not copied to the judge or opposing counsel.

Five days before the scheduled trial, the client was for the first time informed that another attorney had been brought into the case and that there would be no trial because of the request for substitution. The client called to confirm the continuance with the court and was told the trial was still scheduled to go forward, but the attorney nevertheless again assured the client that the trial would not be held. The judge and the defendants did appear for trial, but no one appeared on behalf of the plaintiff. The case was subsequently dismissed for failure to prosecute.

BAPR found that by failing to meet statutory requirements in the motion for substitution of judge, by failing to seek confirmation that the trial had been continued, and by failing to appear at trial, the attorney failed to provide competent representation, contrary to SCR 20:1.1; and failed to act with reasonable diligence and promptness, contrary to SCR 20:1.3. By failing to promptly inform the client about involving another attorney in the trial of the case and by failing to discuss the request for substitution of judges with the client, the attorney failed to adequately communicate with the client, contrary to SCR 20:1.4(a) and (b). Finally, by showing the client's file to another attorney and agreeing to split legal fees with that attorney without the client's prior knowledge or consent, the attorney violated SCR 20:1.6(a), which proscribes disclosure of information relating to representation of a client without the client's consent; and SCR 20:1.5(e), which allows a division of fees only when the client is advised of and does not object to the participation of all the lawyers involved.

The attorney had no prior discipline.

Adverse Party Communication - Guardianship

Violation of SCR 20:4.2

An attorney represented the petitioner on a Petition for Protective Placement. Adversary counsel for the prospective ward filed a motion seeking to vacate a previous order appointing the petitioner as guardian. A hearing on that motion was held on Dec. 23 and the order was vacated; however, the petition for protective placement was not dismissed. Both attorneys appeared at the Dec. 23 hearing. Both attorneys drafted proposed orders, and the attorney for the petitioner copied opposing counsel with her proposed order on Dec. 29.

On Dec. 25, the attorney for the petitioner visited the proposed ward in the nursing home where she was residing. The attorney obtained the proposed ward's signature on a Durable Power of Attorney and a Power of Attorney for Health Care to the petitioner. Both of these documents were drafted and signed by the attorney for the petitioner. The proposed ward's attorney did not give consent for the meeting nor was he advised of the meeting. The proposed ward was an elderly individual who was diagnosed with dementia and taking psychotropic medication.

BAPR found that the attorney for the petitioner violated SCR 20:4.2 by meeting with the proposed ward without the knowledge or consent of the proposed ward's attorney.

The attorney had no prior discipline.

Lack of diligence, failure to communicate, failure to cooperate with BAPR

Violation of SCR 20:1.3, SCR 20:1.4(a), and SCR 22.07(3)

An attorney was retained to represent a client in a "slip and fall" case in February 1997. An offer had been made to the client's previous attorney, who withdrew when he accepted new employment. After meeting with the client, the attorney contacted the insurance adjuster who was handling the case and had several discussions regarding the case, but did not reach a settlement. The attorney again spoke to the adjuster in early July 1997 (the statute of limitations would run on July 5, 1997). They discussed a new settlement amount, but the attorney failed to finalize the settlement or file a lawsuit before the statute ran. The attorney did not speak to the client to inform her of what occurred, despite the client's several attempts to contact the attorney. The adjuster closed his file 60 days after the statute ran. During the investigation of this matter, the attorney failed to respond to seven letters from BAPR, despite acknowledging receipt of those letters.

BAPR found that, by failing to settle the claim or file suit before the statute of limitations ran, the attorney violated SCR 20:1.3; by failing to respond to the client's attempts to reach her and failing to inform the client of the status of her case, the attorney violated SCR 20:1.4(a); and that by failing to respond to BAPR letters, the attorney violated SCR 22.07(3).

The attorney had no prior discipline.

Unwritten contingent fee agreement, and improper disbursement of funds

Violations of SCR 20:1.5(c), 20:1.15(b), 20:3.4(c)

An attorney represented a woman and her minor children on injury claims pursuant to a contingent fee agreement that was not reduced to writing, in violation of SCR 20:1.5(c). In violation of SCR 20:1.15(b) and 20:3.4(c), the attorney disbursed certain funds to the woman, when by court order those funds were to be paid to health-care providers who treated the minor children.

Lack of diligence, conflict of interest

Violations of SCR 20:1.3 and 20:1.7(b)

In one matter, the attorney represented an estate, and violated SCR 20:1.3 by failing to make any progress for about 16 months.

In the second matter, the attorney undertook representation of an alleged participant in illegal drug activities, while already representing another suspect in the same alleged activities. The attorney violated SCR 20:1.7(b) by failing to obtain any conflict waiver from the first client. A separate violation of SCR 20:1.7(b) occurred when the attorney failed to engage the second client in the level of consultation required under SCR 20:1.7(b). The attorney had that client sign a purported conflict waiver that referred to (but did not identify) "another person" whom the attorney also represented.

Lack of diligence, failure to communicate, practicing law while administratively suspended

Violation of SCR 20:1.3, SCR 20:1.4(a) and (b), and SCR 20:5.5(a)

In 1995 an attorney was appointed by the Public Defender's Office to represent a client in an appeal of a criminal conviction. The attorney eventually formed the belief that the appeal lacked merit, but failed to ever file a no-merit brief or withdraw. The client became concerned over the lack of attorney contact and made several attempts to contact the attorney by letter and phone, to which the attorney failed to respond.

The attorney prepared a motion to withdraw after the grievance had been filed, but failed to ever file the motion. The attorney contacted the Public Defender's Office in early 1997 to inform them that he wished to withdraw. However, successor counsel had already been appointed after the client had contacted the Public Defender's Office regarding the lack of communication from the attorney.

The attorney's law license was later suspended for failure to comply with CLE requirements. The attorney claimed not to have received notices regarding the suspension but stated that he was aware that his license would be suspended for his failure to meet the requirements and his failure to pay dues. Subsequent to his suspension, the attorney appeared in traffic court on behalf of friends on two occasions.

BAPR found that by failing to either advance the client's appeal or withdraw for almost two years, the attorney failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. BAPR also found that by failing to respond to the client's reasonable requests for information on the status of the appeal and failing to advise the client of his belief that the appeal lacked merit, the attorney violated SCR 20:1.4(a) and (b). BAPR further found that, by appearing in traffic court after his license had been administratively suspended, the attorney engaged in the practice of law in violation of the regulation of the legal profession in that jurisdiction, in violation of SCR 20:5.5(a).

The attorney had no prior discipline.

Neglect, failure to communicate, improper withdrawal

Violations of SCR 20:1.3, 20:1.4 and 20:1.16(d)

The attorney represented a client in an employment discrimination matter. The attorney failed to respond to two requests for information from the state Equal Rights Division, causing that complaint to be dismissed.

The attorney then commenced a federal action. The attorney says that after the client's deposition was taken, the attorney decided the case was not worth pursuing and advised the client to get another attorney. The client disputes being so advised. Six months later, the attorney received a motion for summary judgment. The attorney didn't send a copy of the motion to the client and didn't respond to the motion, causing the client's action to be dismissed.

BAPR found that the attorney's failure to respond to requests for information from the state Equal Rights Division and to the motion for summary judgment in the federal action constituted a failure to act with reasonable diligence and promptness, contrary to SCR 20:1.3; that the attorney's failure to notify the client about the motion for summary judgment and to confer with the client about whether the client wished to pursue his action constituted a failure to adequately communicate, contrary to SCR 20:1.4; and that the attorney's apparent withdrawal from the case, without notice to the court, to adverse counsel or any written notice to the client, and without taking the necessary steps to protect the client's interests, was contrary to SCR 20:1.16(d).

The attorney had not previously been disciplined

Accepting settlement without client's authorization, failing to protect a third party's interests in a settlement

Violations of SCR 20:1.2(a) and SCR 20:1.15(b)

In July 1994 an attorney was retained to represent a man regarding an automobile accident. While that case was pending, the man was incarcerated for an unrelated probation violation. In October 1996, while the client was still incarcerated, the respondent attorney received a settlement offer from opposing counsel. The attorney failed to inform the client of the offer and settled the case for approximately $11,000, without the client's authorization, contrary to SCR 20:1.2(a). When the client learned about the settlement, he refused to sign a release of his claim, and opposing counsel ultimately brought a motion to enforce the settlement. The attorney contended that the client gave his father the authority to settle the case, and that the father accepted the settlement offer. The client and his father both deny this, and the attorney had no documentation of such an arrangement.

The attorney also represented a woman regarding an October 1992 automobile accident. In March 1993 the attorney sent a protection letter to the woman's chiropractor, promising to pay the charges for the woman's care from any settlement proceeds that were received. In April 1993 the attorney signed a doctor's lien, further agreeing to withhold funds from the settlement to pay the chiropractic charges. The case was settled for approximately $58,000 in February 1996. The attorney failed to promptly notify the chiropractor of his receipt of the settlement, and further failed to promptly disburse the funds to which the chiropractor was entitled, in violation of SCR 20:1.15(b).

The misconduct in the first matter was aggravated in that the attorney's personal interests appeared to take precedence over the client's interests. In the second matter, the financial harm to the chiropractor was an aggravating factor.

The attorney had no prior discipline.

Failing to file targeted direct mail advertisements with BAPR

Violation of SCR 20:7.3(b)

An attorney sent targeted direct mail advertisements to prospective clients for five years without filing a copy of said advertisements with BAPR within five days of dissemination, as required by SCR 20:7.3(b). The conduct was aggravated by the attorney's prior discipline, which included two public reprimands and a 60-day suspension.

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