Public Discipline
The Office of Lawyer Regulation (OLR), an agency of the Wisconsin Supreme Court, provides these summaries for educational purposes. The OLR assists the court in supervising the practice of law and protecting the public from misconduct by lawyers. Find the full text of these summaries at www.wicourts.gov/olr.
Reinstatement of David V. Moss
On Aug. 2, 2017, the Wisconsin Supreme Court reinstated the law license of David V. Moss with conditions. Disciplinary Proceedings Against Moss, 2017 WI 82.
On July 30, 2014, the supreme court had suspended Moss’s license for two years for 35 counts of misconduct, involving eight client matters. Disciplinary Proceedings Against Moss, 2014 WI 95. Moss’s misconduct included repeatedly taking fees from clients and failing to perform the work for which he was hired, failing to communicate with clients regarding the status of their matters, and failing to return fees and client files upon request. Moss was later reciprocally disciplined by the U.S. Patent and Trademark Office.
Following a public hearing on Moss’s petition for reinstatement, a supreme court-appointed referee issued a report recommending that Moss’s license be reinstated with conditions. The referee concluded that Moss satisfied the burden of proof and requirements for reinstatement set forth in SCR 22.31.
The supreme court granted Moss’s petition for reinstatement with the conditions that Moss 1) continue in counseling with a therapist who treats bipolar conditions; 2) continue in treatment with a physician who prescribes medication for bipolar conditions; 3) cooperate by taking the medication prescribed for his bipolar condition; 4) not consume any illegal drugs; and 5) for two years following reinstatement, provide the Office of Lawyer Regulation (OLR) with quarterly written reports from his therapist and his prescribing physician that he is cooperating with therapy and taking the prescribed medication for his bipolar condition. The supreme court further ordered that within 60 days after the date of the order, Moss pay the $3,321.79 cost of the proceeding.
Public Reprimand of Thomas Aul
The OLR and Thomas Aul, formerly of Delafield, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee thereafter approved the agreement and issued the public reprimand in accordance with SCR 22.09(3) on July 7, 2017.
Aul and his wife owned two commercial buildings through a real estate investment company. A woman contacted Aul to view one of the properties for a family restaurant business.
During dinner with the woman and her husband, Aul stated a willingness to sell the property to the couple on land contract for the appraised value of the property. The parties agreed to a down payment of $75,000.
The couple told Aul they did not have sufficient funds for a down payment and operating capital. Aul suggested the couple cash out a whole life insurance policy and replace it with a term life policy. Aul agreed to assist the couple in structuring ownership of the property and creating an entity that would operate the restaurant.
The couple executed the offer to purchase that Aul had prepared. The husband also executed a term life policy application. Aul signed the application as the insurance company agent and received a commission for the sale.
During the closing, Aul gave the couple a land contract closing statement that included legal fees. The couple also signed a “waiver of conflict of interest.” The document memorialized Aul’s prior services but did not clarify whether the couple signed in their individual capacities or also on behalf of the limited liability company that would own the real estate and the corporation that would operate the restaurant. Aul did not record the land contract.
Nine months later, the couple decided to cease operation of the restaurant. Shortly thereafter, Aul’s counsel gave notice to the couple that one of their companies was in default with respect to principal and interest payments on the property. The couple later filed a civil lawsuit against Aul, which was resolved by stipulation.
By failing to communicate in writing to the couple the scope of his representation and the basis or rate of his fee and expenses, Aul violated SCR 20:1.5(b)(1).
By acting as agent for a life insurance company in obtaining an application for life insurance from the husband and in obtaining a commission for the sale, Aul violated SCR 20:1.8(a).
By representing the couple in taking steps toward acquisition of the restaurant property and operation of the restaurant business before signing of a conflict waiver, while Aul’s own interests and those of his real estate company were adverse to those of the couple and their two companies, Aul violated SCR 20:1.7(a)(1) and (2).
By failing to record the land contract signed at closing, Aul violated SCR 20:1.3.
Aul has no prior discipline.
Disciplinary Proceedings Against Steven J. Sarbacker
On Sept. 15, 2017, the supreme court suspended the law license of Steven J. Sarbacker, Portage, for 60 days, effective Oct. 27, 2017. Disciplinary Proceedings Against Sarbacker, 2017 WI 86. The supreme court ordered Sarbacker to pay the $1,375.83 cost of the disciplinary proceeding. Sarbacker’s suspension was based on six counts of professional misconduct relating to a client matter and separate criminal misconduct.
A married couple hired Sarbacker to collect a money judgment. In June 2014, Sarbacker had successfully arranged for the debtor’s employer to garnish the debtor’s wages. In July 2014, Sarbacker began receiving weekly garnishment checks on behalf of the clients. Sarbacker and the clients agreed that he would take his fee (one-third of the total garnishment) and costs from the garnishment checks, then send the balance of the garnishment funds to the clients. There was no written fee agreement. By representing the clients pursuant to an unwritten contingent-fee agreement, Sarbacker violated SCR 20:1.5(c).
Sarbacker began depositing garnishment checks into both his trust and operating accounts. By Dec. 29, 2014, Sarbacker had received 24 garnishment checks totaling more than his agreed-upon fee. After Dec. 29, 2014, Sarbacker received 25 additional garnishment checks, representing the clients’ portion of the garnishment, but he did not disburse these funds to the clients.
By depositing into his business account 15 garnishment checks that were the property of the clients, and by disbursing the clients’ funds to himself from his trust account, Sarbacker, in each instance, violated SCR 20:1.15(b)(1). By depositing 10 checks into his trust account and then disbursing almost all those funds to himself or his law office, and by depositing the remaining 15 checks directly into his operating account, Sarbacker, in each instance, violated SCR 20:8.4(c).
In June 2015, the clients demanded their portion of the garnishment funds from Sarbacker, but he failed to send the funds. The clients then contacted the debtor’s employer and requested that all remaining garnishment checks be sent directly to them. On July 14, 2015, the clients sent a certified letter to Sarbacker listing their unsuccessful attempts to contact him. The clients demanded payment of their portion of the garnishment funds plus interest. Sarbacker failed to respond. Finally, in October 2015, Sarbacker sent the clients a cashier’s check and a receipt documenting incurred costs.
By failing to promptly deliver to the clients their portion of the garnishment funds, Sarbacker violated former SCR 20:1.15(d)(1). Sarbacker also violated SCR 22.03(2), enforceable via 20:8.4(h), by failing to timely cooperate in the OLR’s investigation.
In February 2016, Sarbacker engaged in conduct leading to his being charged with, and pleading no contest to, misdemeanor counts of battery and disorderly conduct in Sauk County. Sarbacker entered into a 12-month deferred prosecution agreement, but nevertheless his conduct violated SCR 20:8.4(b).
Sarbacker was privately reprimanded in 2013 and 2016.
Private Discipline
The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, a summary of facts and professional conduct rule violations in matters in which the OLR imposed private reprimands. The summaries do not disclose information identifying the reprimanded attorneys. The summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems.
Criminal Act Reflecting Adversely on Fitness to Practice
Violation of SCR 20:8.4(b)
A lawyer was convicted in January 2017 of misdemeanor second-offense operating while intoxicated (OWI) after a car accident in the parking lot of the lawyer’s apartment building. The lawyer exhibited signs of intoxication, admitted to having consumed alcohol, refused to perform field-sobriety tests, and was placed under arrest for OWI. The lawyer’s blood alcohol content was 0.17.
The lawyer’s sentence included 70 days in jail (Safe Streets Treatment Option Program ordered, 60 days stayed), driver’s license revocation for 15 months, and ignition-interlock-device installation for 15 months. The lawyer was ordered to submit to and comply with an alcohol assessment, attend a victim impact panel, and pay a fine and costs.
By engaging in conduct leading to a conviction of second-offense OWI, the lawyer violated SCR 20:8.4(b).
The lawyer had no prior discipline.
Failure to Timely File Federal Income Tax Returns
Violation of SCR 20:8.4(f)
A lawyer willfully failed to timely file federal income tax returns for four consecutive tax years. By failing to timely file the federal income tax returns, the lawyer violated SCR 20:8.4(f), which states, “It is professional misconduct for a lawyer to: … (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers.” See, e.g., In re Disciplinary Proceedings Against Owens, 172 Wis. 2d 54, 56-57, 492 N.W.2d 157 (1992) (holding that failure to file income tax returns constitutes professional misconduct).
The lawyer had no prior discipline.
Criminal Act Reflecting Adversely on Fitness to Practice
Violation of SCR 20:8.4(b)
A lawyer was convicted in February 2017 of Michigan’s misdemeanor second-offense operating while intoxicated/impaired crime after an accident in which the lawyer’s car rear-ended another vehicle. The lawyer then exhibited signs of intoxication, failed field-sobriety tests, and was placed under arrest. The lawyer’s breath-test result was 0.21 percent.
The lawyer was sentenced to serve 21 days in jail and was placed on probation for 16 months, conditions of which include completion of a victim impact panel, attendance at AA/NA meetings, vehicle immobilization for 180 days, and submission to twice-daily preliminary breath tests for 30 days and random tests for a period thereafter. The lawyer was also ordered to pay a fine and costs.
By engaging in the conduct that led to the conviction, the lawyer violated SCR 20:8.4(b).
The lawyer had no prior discipline.
Criminal Act Reflecting Adversely on Fitness to Practice
Violation of SCR 20:8.4(b)
A lawyer was convicted in November 2015 of misdemeanor second-offense OWI. A police officer observed vehicle headlights in the parking lot of a closed business. The lawyer was found passed out in the driver’s seat of that vehicle. The lawyer then exhibited signs of intoxication, failed field-sobriety tests, and was placed under arrest for OWI. The lawyer provided a breath sample with a result of 0.16 g/210L.
The lawyer’s sentence included 10 days in jail with Huber privileges, driver’s license revocation for 14 months, and ignition-interlock-device installation for 14 months. The lawyer was further ordered to undergo an alcohol assessment and pay a fine and costs.
By engaging in the conduct that led to the conviction, the lawyer violated SCR 20:8.4(b).
The lawyer had no prior discipline.
Fairness to Opposing Counsel and Parties
Violation of 20:3.4(d)
A Wisconsin lawyer represented a client as outside counsel in a civil case filed in another state. In connection with the litigation, local counsel prepared a “consulting agreement” with a key witness. Local counsel also prepared a “joint litigation agreement” in which the client and the witness would share materials and cooperate in discovery in collateral litigation.
During discovery in the case, the client was asked to disclose all consulting, employment, or other agreements involving the witness. The client failed to specifically identify the consulting agreement in response to the propounded discovery. Instead, the client claimed that the consulting agreement was a “limited indemnity agreement,” which misrepresented the terms of the consulting agreement with the witness. In addition, the client identified, but did not produce, the joint consulting agreement with the witness.
While the Wisconsin lawyer did not prepare the client’s discovery responses, he was aware of the discovery issues. A special master appointed by the trial court (and ultimately the state’s highest court) found that the client’s local counsel, as well as the Wisconsin lawyer and another lawyer, intentionally violated discovery rules in falsely identifying the consulting agreement as a “limited indemnity agreement” and in failing to produce the joint consulting agreement. As a sanction for intentionally violating discovery rules, the trial court dismissed the client’s lawsuit.
By failing to make reasonably diligent efforts to comply with legally proper discovery requests from an opposing party, leading to a finding that the lawyer (and other counsel) had intentionally violated discovery rules, the lawyer violated SCR 20:3.4(d).
The lawyer had no prior discipline in Wisconsin, but in 2017 the other state’s highest court privately reprimanded the lawyer for the same conduct.
Criminal Act Reflecting Adversely on Fitness to Practice
Violation of SCR 20:8.4(b)
In November 2016, police responded to a report of an unresponsive person inside a running vehicle. Officers found the lawyer in the driver’s seat with his eyes closed. The officers attempted to wake him by pounding on the car windows with their hands and batons but had to break a window to unlock the doors and rouse the lawyer. The police smelled alcohol on the lawyer’s breath and found an almost empty bottle of vodka in the car. The lawyer did not know where he was, but stated he had been driving from his home to his workplace.
The lawyer appeared intoxicated, admitted to drinking vodka, and failed several field-sobriety tests. His breath test resulted in a reading of 0.28AC. The lawyer received traffic citations for first-offense OWI and first-offense operating with a prohibited alcohol concentration (PAC).
In December 2016, the lawyer interacted with law enforcement in another county, resulting in citations for possession of an open container as the driver of a motor vehicle, first-offense operating with PAC, first-offense OWI, and refusing to take a test for intoxication after arrest. In February 2017, he was convicted of first-offense OWI related to the second interaction.
Due to the intervening conviction, the lawyer was convicted of second-offense OWI related to the November 2016 incident. The sentence included 25 days in jail, a 12-month license suspension, and ignition-interlock-device installation for 12 months. The lawyer also was ordered to pay a fine, costs, and fees and to undergo an alcohol assessment.
By engaging in conduct leading to a conviction of second-offense OWI, the lawyer violated SCR 20:8.4(b).
The lawyer was privately reprimanded in 1991 for violations of SCR 20:5.3(c) and SCR 20:8.4(c).
