Wisconsin Lawyer
Vol. 84, No. 11, November 2011
Criminal Act (OWI 2nd) that Reflects Adversely on Lawyer’s Fitness to Practice
Violation of SCR 20:8.4(b)
An attorney was convicted of misdemeanor second-offense operating while intoxicated based on a traffic stop in 2010. The stop occurred after the car driven by the attorney was clocked at a speed nearly 40 miles per hour over the posted speed limit. The law enforcement officer conducting the traffic stop observed signs of the attorney’s apparent intoxication. The attorney declined to perform field sobriety tests and likewise refused to take a preliminary breath test. When measured later, the attorney’s blood alcohol level was 0.17. The attorney’s sentence included 10 days in jail with Huber privileges, 12 months’ driver’s license revocation, and a fine.
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.”
Engaging in Prohibited Sexual Relationship with a Client
Violation of SCR 20:1.8(j)
A woman hired an attorney in October 2007 to represent her in a matter concerning her employment. The woman paid the attorney $1,800 for the representation. In November 2007, while the attorney was representing the woman, the two began a consensual sexual relationship. There had been no sexual relationship between the two before the commencement of the attorney-client relationship. The sexual relationship continued until October 2009. Although the woman obtained a favorable outcome in the matter, in February 2010 she sought return of the fee she paid to the attorney for the representation, and on March 1, 2010, the attorney sent a full refund to the woman.
By commencing a sexual relationship with the woman during his legal representation of her, and continuing the sexual relationship through the period of the legal representation, the attorney violated SCR 20:1.8(j), which states, “A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”
The attorney had no prior discipline.
Conflict of Interest; Failure to Cooperate; False Statement to Court
Violations of SCR 20:1.7(a) and (b), 22.03(2) and (6), 20:8.4(h), and 20:3.3(a)(1)
An attorney represented an individual in a divorce. At some point during the pendency of the divorce, a criminal action was brought against the client; the attorney was the alleged victim. The attorney continued to represent the client in the divorce. Although the charges against the client were eventually dropped, the attorney’s failure to obtain the client’s written consent to the continued representation in the divorce while the criminal action was pending violated SCR 20:1.7(a) and (b).
During the course of the OLR’s investigation, the attorney also failed to fully and fairly disclose all the facts and circumstances pertaining to the alleged misconduct, failed to disclose relevant information, such as that set forth in a police report, and made misrepresentations to the OLR, in violation of SCR 22.03(2) and (6), made applicable through SCR 20:8.4(h). The attorney also made misrepresentations to a court about the police report and about the nature of the attorney’s relationship with the client, in violation of SCR
20:3.3(a)(1).
As conditions on the imposition of a private reprimand, the attorney agreed to be referred to the State Bar’s assistance program, to comply with the conditions proposed by the OLR’s director regarding participation and compliance with that program, and to pay the costs associated with the attorney’s compliance with these conditions. A breach of the conditions would provide grounds for the OLR to rescind the agreement for a private reprimand and proceed as otherwise provided by supreme court rules.
Fee Agreement and Accounting Shortcomings; Failure to Cooperate with OLR Investigations
Violations of SCR 20:1.5(b)(1), (2) and (3), 22.03(2) and (6), and SCR 20:8.4(h)
An attorney with no prior discipline was privately reprimanded for misconduct occurring in two separate matters. In the first matter, the attorney defended a client in a felony case. Time records in the matter indicated that the attorney or other members of the attorney’s firm performed a substantial amount of work in the matter. For five months, and notwithstanding at least three written requests from the client, the attorney failed to provide the client with a written fee agreement and a receipt for a $5,000 payment, and the attorney failed to provide the client with an itemized statement until after the client filed a grievance, contrary to SCR 20:1.5(b)(1), (2), and (3). The attorney did not provide the OLR with a response to the grievance until he received notice by regular mail, certified mail, and personal service, in violation of SCR 22.03(2) and (6) and SCR 20:8.4(h).
The second matter involved the attorney’s representation of a client in two felony cases. The attorney failed to provide the client with a written fee agreement regarding the terms of his representation in the second case, although he knew that the total cost of the representation would exceed $1,000, and failed in each matter to provide the client with an accounting, in violation of SCR 20:1.5(b)(1), (2), and (3). The attorney did not provide the OLR with a response to the grievance until he received notice by regular mail, certified mail, and personal service, in violation of SCR 22.03(2) and (6) and SCR 20:8.4(h).
Lack of Diligence; Failure to Communicate; Failure to Comply with Trust Account Notice and Accounting Requirements; Failure to Comply with CLE Requirements; Practicing Law While Suspended
Violations of SCR 20:1.3, former 20:1.4(a), current 20:1.4(a)(3) and (4), former 20:1.15(a) and (b), current 20:1.15(b)(1) and (4), 20:1.15(d)(2), 31.10(1), and 20:8.4(f)
An attorney with no prior discipline received a private reprimand with conditions for misconduct occurring in two separate matters.
In the first matter, the attorney was hired in 2002 to handle a securities claim against a broker and a brokerage firm. As a result of the attorney’s lack of diligence, the case dragged on for six and one-half years. The attorney violated SCR 20:1.3 when he failed repeatedly to advance the clients’ case, particularly by failing to file the clients’ claim with the regulatory agency until November 2006. The attorney violated former SCR 20:1.4(a) and current SCR 20:1.4(a)(3) and (4) when he failed to respond to many requests for information from both his clients and co-counsel, and when he failed on many occasions to keep his clients and co-counsel informed about the status of the matter.
During the representation, the attorney violated former SCR 20:1.15(a) and (b) (effective before Feb. 1, 2005) and current SCR 20:1.15(b)(1) and (4) and 20:1.15(d)(2) by failing to deposit two checks (for filing fees) from his co-counsel’s firm into his client trust account and failing to account for the funds or respond to many requests from co-counsel for information about the checks.
In the second matter, the attorney was suspended for approximately five months for noncompliance with mandatory continuing legal education requirements. During that time, the attorney continued to practice law, contrary to SCR 31.10(1) and 20:8.4(f), by representing approximately 20 clients in various matters, which included having several client contacts, assisting with an administrative hearing, handling an employee termination matter through settlement, and reviewing and analyzing documents.
The private reprimand was conditioned on the attorney’s agreement to be referred to the State Bar’s assistance program, to comply with the conditions proposed by the OLR’s director regarding participation and compliance with that program, and to pay the costs associated with the attorney’s compliance with the conditions. A breach of the conditions would provide grounds for the OLR to rescind the agreement for a private reprimand and proceed as otherwise provided by supreme court rules.
Failure to Properly Supervise in a Real Estate Matter; Dishonesty in a Real Estate Matter
Violations of SCR 20:5.3(b) and 20:8.4(c)
An attorney worked as an independent contractor performing legal services for a title company owned by her husband and another individual. The title company issued the title insurance policy for a real estate transaction. The attorney signed the deed in the real estate transaction, indicating that she was the preparer of the deed. There was a mistake in the legal description on the deed, and so a second deed was drafted. The attorney also signed this deed. A dispute arose over the manner in which the deed was corrected, distributed, and re-recorded. That dispute is currently being litigated, and the attorney is not a party to that lawsuit.
An employee of the title company drafted both deeds. The attorney was not the person’s employer but she had supervisory authority over the employees at the title company who performed work on her behalf. Although the attorney signed both deeds, she did not review either deed nor did she verify any information contained therein. She admitted that she failed to properly supervise persons performing work on her behalf, instead relying on her husband to direct and proofread the work.
The sellers were charged $75 for the legal services rendered by the attorney in the real estate transaction but the attorney admitted that she did not provide any legal services related to the real estate transaction.
By failing to properly supervise individuals performing work on her behalf, the attorney violated SCR 20:5.3(b). By collecting legal fees for legal services not actually rendered, the attorney violated SCR 20:8.4(c).
The attorney has no prior discipline.
Lack of Diligence; Failure to Communicate
Violations of SCR 20:1.3, former 20:1.4(a), and current 20:1.4(a)(3) and (4)
An attorney received a private reprimand based on misconduct in two criminal appeals.
In the first matter, the State Public Defender (SPD) appointed the attorney to represent a man on appeal of his conviction for burglary and home invasion. The man had pleaded guilty to the charge and received a 14-year sentence in July 2005. After his initial work on the client’s appeal, the attorney failed to timely file the notice of appeal and did not initiate regular communication with the client about the status of the matter. Although the attorney did respond to some letters he received from the client and met with him twice during the course of the representation, he did not prepare a postconviction motion to withdraw the client’s plea as he had agreed to do.
The client’s appeal deadline passed in January 2006, but the attorney failed to recognize this and believed he was missing transcripts for the client’s case. By March 2006, the attorney should have been aware that all transcripts had been produced and that the appeal deadline had passed, but he did not file a motion to reinstate the client’s appeal rights until October 2009. The court of appeals granted the attorney’s motion to reinstate the client’s appeal rights in November 2009. Thereafter, the attorney met all deadlines in the case.
By missing the client’s appeal deadline and failing to advance the client’s appeal for more than four years, the attorney failed to act with reasonable diligence and promptness in representing a client and thereby violated SCR 20:1.3. By failing to communicate adequately with the client from the beginning of the representation until the client’s appeal rights were reinstated, the attorney violated former SCR 20:1.4(a) and current SCR 20:1.4(a)(3) and (4), which require a lawyer to keep a client reasonably informed about the status of the case and to respond to the client’s reasonable requests for information.
In the second matter, the SPD appointed the attorney in August 2005 to represent a man who had been convicted of sexual assault. After sending an initial introductory letter to the client, the attorney did little work to advance the appeal. Over the next several years, the client did not contact the attorney, and the attorney did not keep track of the appeal, including the deadline for filing the notice of appeal. In November 2008, the attorney contacted the client again and suggested that he file a voluntary dismissal. The client ultimately declined to dismiss his appeal voluntarily and instructed the attorney to go forward with the appeal.
By May 2009, the attorney had not taken any further action, and the client contacted him again to request that the attorney pursue the appeal. The attorney met in person with the client and agreed to file a motion to reinstate the client’s appeal rights but did not do so until five months later, in October 2009. The court of appeals denied the motion, ruling that the proper procedure was for the client to petition for a writ of habeas corpus on the basis of ineffective assistance of appellate counsel. The SPD appointed new counsel, who filed the writ and secured the reinstatement of the client’s direct appeal rights.
The attorney’s failure to pursue the client’s appeal for more than three years constituted a lack of diligence in violation of SCR 20:1.3. Also, by failing to communicate with the client throughout the representation, the attorney violated former SCR 20:1.4(a) and current SCR 20:1.4(a)(3) and (4), which require a lawyer to keep a client reasonably informed about the status of the client’s case and to respond to the client’s reasonable requests for information.
The attorney had no prior discipline.
Commission of Criminal Act (Attempted Carrying of Pistol Without License) Reflecting on Fitness
Violation of SCR 20:8.4(b)
A Wisconsin-licensed attorney was the subject of a traffic stop in another state after he was observed driving a vehicle the wrong way on a one-way street. The officer conducting the traffic stop observed a handgun under the driver’s seat. In violation of the laws of the jurisdiction, the attorney did not have a license to carry the gun within the jurisdiction, and he did not possess a registration certificate for the firearm.
The attorney was eventually charged with carrying a pistol without a license, unregistered ammunition, and driving under the influence. Pursuant to a plea agreement the attorney was convicted of a misdemeanor, attempted carrying a pistol without a license. The attorney was sentenced to 90 days’ incarceration (suspended sentence), unsupervised probation for six months, and $350 in fines and assessments. By his acts leading to his conviction, 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 attorney, who had no prior discipline, reported his conviction in the manner specified under SCR 21.15(5).
Conflict of Interest; Prohibited Transaction
Violation of SCR 20:1.8(a)
In October 2008, an attorney was contacted by a cousin, who requested legal assistance. The cousin had been sued by his former attorneys for unpaid attorney fees and interest in the amount of $48,000. The cousin asked the attorney to represent him or refer him to someone who would represent him.
In response, the attorney filed an answer on the cousin’s behalf and negotiated a settlement of $35,000. The cousin told the attorney that he did not have the money to pay the settlement and requested that the attorney advance the entire amount on the cousin’s behalf. The attorney advanced the $35,000 and signed a dismissal stipulation, and the matter was resolved shortly thereafter. The attorney did not provide the cousin with a writing describing the terms and conditions of the transaction nor did he advise him to seek independent legal counsel on the transaction. In addition, the attorney failed to obtain the cousin’s informed, written consent regarding the transaction and the attorney’s role in the transaction.
After the matter was settled, the attorney wrote to the cousin and asked him to repay the loan. In May 2009, the attorney wrote to the cousin again and asked him why he had not repaid the $35,000 loan. The cousin replied that he had not authorized the attorney to answer the lawsuit or settle the case, and he denied liability for the $35,000. The attorney brought suit to recover the money. In February 2011, a judgment was entered in favor of the cousin, and the case was dismissed.
By entering into a business transaction with a client or purposefully acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client, the attorney violated SCR 20:1.8(a), which provides, “A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.”
The matter resulted in a private reprimand. The attorney had no prior discipline.
Conflict of Interest: Current Client; Conflict of Interest: Prohibited Transactions
Violations of SCR 20:1.7(a)(2) and 20:1.8(a)
An attorney represented a man as the petitioner in a divorce, which was granted in April 2008. The man (the decedent) died in September 2009. The attorney then represented the personal representative in a matter involving the decedent’s estate.
While the attorney was representing the personal representative, he filed two claims against the estate. In December 2009, the attorney filed a claim for $5,574.32 for payment of legal fees incurred between August 2007 and October 2009. Attached to this claim were two invoices addressed to the divorce client (the decedent). A December 2009 invoice noted two credits on the account for work the decedent had done for the attorney in January and June 2009. The attorney filed a second claim against the estate for $3,450 that he allegedly loaned to the decedent over the years in the form of cash and checks. The attorney did not obtain a receipt or have signed promissory notes documenting the loans, and the attorney ultimately elected not to pursue collection of the loans.
The attorney withdrew from the estate matter in March 2010. In January 2011, the court made an order allowing in part and disallowing in part the attorney’s claims. The attorney abandoned the claims for monies advanced to the decedent. The court awarded the fees for matters the attorney had handled for the decedent.
By representing the personal representative of the estate while at the same time filing claims of his own against the estate, the attorney violated SCR 20:1.7(a)(2). By loaning money to the decedent without a promissory note, and by giving a credit to the decedent on the attorney fees he owed because of services the decedent provided, without any written agreement between the parties, the attorney violated SCR 20:1.8(a).
The attorney had two prior private reprimands, the most recent of which was imposed in 1993.
Failure to Provide Competent Representation; Failure to act with Reasonable Diligence
Violations of SCR 20:1.1 and 20:1.3
An attorney was appointed to represent a woman on multiple counts of possession of drugs and drug paraphernalia and disorderly conduct. In May 2009, the attorney appeared at the adjourned initial appearance with the client, who entered a not- guilty plea. The matter was continued for a pretrial conference in July 2009.
On May 19, 2009, the state of Wisconsin brought a civil case against the client to seize her car. The client asked the attorney to represent her in the civil matter and provided the attorney with a copy of the summons and complaint. Page one of the summons stated that an answer was due within 20 days of receipt. Page two of the summons stated that if the court did not receive a proper answer within 45 days, the court may grant judgment against the defendant. The attorney mailed an answer on July 2, 2009, which was within the 45-day time limit, but he admitted he was confused by the two different deadlines on the summons.
On July 6, 2009, the judgment for recovery in the civil case was filed. It stated that the defendant had not filed an answer within 20 days of service. Therefore, the court adjudicated that the vehicle was forfeited to the state. The attorney spoke with the prosecutor handling both the criminal and the civil cases against the client. The prosecutor suggested that the attorney file a motion to set aside the judgment on the grounds of excusable neglect. The attorney took this under advisement and then spent the next few months working on the client’s case, believing he could work out the civil matter as the criminal matter unfolded.
The client entered pleas in the criminal case on Oct. 6, 2009, and the judgment of conviction was entered on Oct. 9, 2009. The attorney filed a notice of motion and motion to set aside judgment in the civil case on Jan. 22, 2010. At the hearing on Jan. 28, 2010, the judge noted that the attorney’s answer to the original complaint was filed well outside of the time limits, and the attorney’s failure to attach an affidavit to the motion alleging grounds for the excusable neglect, facts to find the neglect excusable, and a viable defense to the same made the entire motion insufficient on its face. The judge denied the motion to reopen the civil case.
By failing to file the answer within the appropriate time limit and by filing a deficient motion to set aside judgment, the attorney violated SCR 20:1.1, which requires an attorney to provide competent representation. By failing to file the motion to set aside judgment until six months after the default judgment in the forfeiture case, the attorney violated SCR 20:1.3, which requires reasonably diligent and prompt representation.
The attorney had no prior discipline.
Failure to Provide File to Successor Counsel; Failure to Cooperate with OLR Investigation
Violations of SCR 20:1.16(d) and SCR 22.03(2) and (6), enforceable by SCR 20:8.4(f)
A man was convicted of second-degree sexual assault and incest, both as a repeat offender. In 2005, the assistant attorney general filed a petition for the court to determine whether there was probable cause to believe the man was a sexually violent person. In March 2006, a jury found the man was a sexually violent person, and he was committed to the Department of Health and Social Services.
Following predecessor counsel’s filing of a petition for discharge seeking the man’s release and a motion to withdraw, the respondent attorney was appointed to represent the man in April 2009. In October 2009, the man filed pro se a request for a hearing and different counsel. The court granted the man’s request and appointed successor counsel in November 2009. Successor counsel sent a letter in December 2009 to the attorney, stating that he was successor counsel and requesting that the attorney forward the man’s file to successor counsel. Successor counsel made requests to the attorney via voicemail, email, and the State Public Defender’s office to obtain the file, but to no avail. Successor counsel sent another letter to the attorney in January 2010 to again request the man’s file. Successor counsel informed the court in January 2010 that he had not been able to get any part of the previous file or any information from the attorney.
After the attorney did not respond to multiple letters from the OLR seeking his response to the client’s grievance, the attorney was personally served with the grievance and given seven days to respond. The attorney still did not respond, and the OLR filed a motion in the Wisconsin Supreme Court pursuant to SCR 22.03(4) for an order requiring the attorney to show cause why his license should not be suspended for his willful failure to cooperate with the OLR investigation. The court issued such an order, requiring the attorney to show cause within 20 days why the OLR’s motion should not be granted. Eight days after the court’s issuance of the order, the OLR received the attorney’s response, and withdrew its motion.
By failing to provide the case file materials to successor counsel or to inform successor counsel of any difficulties he might have been experiencing in locating the files, the attorney violated SCR 20:1.16(d). By failing to timely respond to the OLR, the attorney violated SCR 22.03(2) and SCR 22.03(6), enforced under the Rules of Professional Conduct by SCR 20:8.4(f).
The attorney had no prior discipline.
Incompetence; Unreasonable Fee; Failure to Refund Unearned Advanced Fee
Violations of SCR 20:1.1, former 20:1.5(a), current 20:1.5(a), and 20:1.16(d)
An attorney charged a client an advanced fee and costs for the purpose of appealing a municipal court OWI conviction to circuit court. The attorney intentionally delayed filing the appeal until the last moment in the hope that the municipality would be unable to timely appeal the municipal court’s dismissal of the related charge of operating with a prohibited alcohol concentration.
The attorney violated SCR 20:1.1, requiring competent representation, when he failed to comply with the statutory procedure and time limit for initiating an appeal of a municipal court decision. Since 2006, Wis. Stat. section 800.14(1) has required that both the municipal court and the other party be given written notice of the appeal within 20 days after judgment, but the attorney served timely notice only on the municipal court. As a result, the appeal was dismissed for lack of jurisdiction.
The attorney then refused to make any refund of the unearned fee to the client, in violation of SCR 20:1.16(d). The attorney retained the entire advanced fee. He also declined to apply the advance toward an appeal of the circuit court dismissal (although he offered to handle such an appeal for another advanced fee). Under the circumstances, the fee charged and collected was unreasonable, in violation of former SCR 20:1.5(a) (effective before July 1, 2007) and SCR 20:1.5(a). As a condition of the reprimand, the attorney was required to make a restitution payment equal to the full amount of the advanced fees and costs paid by the client.
The attorney had no prior discipline.
Criminal Act (Negligent Operation of a Boat) Reflecting Adversely on Fitness as a Lawyer; Failure to Timely Report Conviction to Clerk of Supreme Court and OLR
Violations of SCR 20:8.4(b) and 21.15(5), enforceable by SCR 20:8.4(f)
An attorney who was intoxicated operated a boat, with passengers on board, at night. The boat crashed. Representatives of the local police department, the Wisconsin Department of Natural Resources, and the U.S. Coast Guard responded to the accident. Excessive speed, alcohol use, and operator inexperience were identified as factors contributing to the accident. A blood draw taken about 90 minutes after the accident indicated the attorney’s blood ethanol concentration to be 0.178g/100mL. The attorney was charged with various offenses, which were resolved pursuant to a no-contest plea to misdemeanor negligent operation of a boat.
The attorney did not report his conviction to the clerk of the supreme court and the OLR until eight months after the conviction. The attorney stated that he was not immediately aware of his duty to report under SCR 21.15(5), and that he made his report upon learning of the requirement. SCR 21.15(5) states, “An attorney found guilty or convicted of any crime on or after July 1, 2002, shall notify in writing the office of lawyer regulation and the clerk of the Supreme Court within 5 days after the finding or conviction, whichever first occurs. The notice shall include the identity of the attorney, the date of finding or conviction, the offenses, and the jurisdiction. An attorney’s failure to notify the office of lawyer regulation and clerk of the supreme court of being found guilty or his or her conviction is misconduct.” Supreme Court Rule 21.15(5) is enforced under the Rules of Professional Conduct via SCR 20:8.4(f), which provides in part that it is professional misconduct to violate a supreme court rule regulating the conduct of lawyers.
Each of the people who was a passenger on board with the attorney at the time of the accident wrote to the OLR, describing the attorney’s remorse and their own desire to put the incident behind them. These statements were a mitigating factor relevant to the issue of appropriate discipline for the conduct that put the attorney and others in danger.
By his conduct, 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.” As described above, the attorney also violated SCR 21.15(5), which is enforced via SCR 20:8.4(f).
The attorney had no prior discipline.
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