Vol. 77, No. 5, May 2004

Private Reprimand Summaries

• Lawyer Discipline

Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

Violation of SCR 20:8.4(c)

In January 1997, an attorney with the respondent attorney's law office met with a man and his wife. The couple wanted a deed that would convey their property to the man's adult daughter, while reserving for themselves a life estate. That attorney prepared a quitclaim deed and a real estate transfer tax return.

In February 1997, both the man and the wife executed the deed, and the respondent attorney signed the transfer tax return as the agent for both the grantors (the couple). At the request of the clients, the respondent attorney signed the transfer tax return as the agent for the grantee (the man's adult daughter). The deed was recorded.

Neither the respondent attorney nor the man or his wife told the man's daughter about the quitclaim deed. In early 2002, the daughter inadvertently learned that the quitclaim deed had been executed and recorded.

After the man's death in early 2002, the daughter filed a grievance, alleging in part that the respondent attorney acted as her agent without her knowledge or consent. The respondent attorney said the transfer by quitclaim deed was to be a gift from the man to his daughter, and that his clients had authorized him to sign the transfer tax return on their behalf and on the daughter's behalf. The respondent attorney stated that the couple wanted to keep the conveyance confidential to avoid any family discord. Both the respondent attorney and the daughter agree that the respondent attorney was never the daughter's attorney.

Above the grantor and grantee signature lines on the transfer tax return appear the words: "CERTIFICATION. We declare under penalty of law, that this return has been examined by us and to the best of our knowledge and belief it is true, correct, and complete."

By signing a legal document certifying he was acting as agent of the grantee when in fact he had no such authorization to do so, the respondent attorney violated SCR 20:8.4(c).

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Scope of Representation; Safekeeping Property

Violation of SCR 20:1.2(a) and 20:1.15(d)

In October 1997, the client retained the respondent attorney to represent him in a personal injury action resulting from an incident that occurred in September 1997. The case was scheduled for a mediation session in June 2001, which the client did not attend. Opposing counsel made a tentative offer to settle the case for $45,000. The respondent attorney only had two days in which to accept the offer.

The respondent attorney and the client had a lengthy telephone call the day opposing counsel made the offer, but the client did not accept the offer that day. The respondent attorney asserted that he also spoke with the client several times the following day, and claimed that he received approval of the settlement offer sometime on that day. The respondent attorney sent opposing counsel a letter on that date stating that the client accepted the settlement terms, but he did not send a copy of this letter to the client. The client denies ever accepting the settlement offer.

In July 2001, opposing counsel sent the respondent attorney a stipulation, releases, and a settlement check made payable only to the respondent attorney's trust account, as per the respondent attorney's request. The respondent attorney deposited the settlement check into his trust account about two weeks later. The client refused to accept the settlement and would not sign any releases.

Opposing counsel filed with the court a motion to compel settlement. At a hearing about a week later, the respondent attorney's previously filed motion to withdraw was denied, and the settlement was enforced by the court.

After the hearing during which the court had enforced the settlement, the respondent attorney paid himself $10,000 toward his attorney fees and paid his expenses. He also paid subrogated parties. The client hired a new attorney, who met with the respondent attorney and purportedly informed him that the client was disputing the respondent attorney's fees, and in light of the dispute, the client wanted the money from the respondent attorney's trust account forwarded to his new attorney's trust account. In September 2001, the respondent attorney forwarded more than $15,000 to the client's new attorney's trust account; however, the respondent attorney retained $5,000 in his own trust account. The client's new attorney wrote to the respondent attorney informing him that until the client gives his consent or a court order is made awarding the funds as and for his attorney fees, the funds were not his property.

In November 2001, the respondent attorney paid himself the remaining $5,000 for his fees. The respondent attorney settled the client's personal injury suit without proper authority from the client to do so, contrary to SCR 20:1.2(a). The respondent attorney paid himself the final $5,000 of his fee for legal services from settlement proceeds held in trust, when he knew the trust account funds held by him were in dispute, contrary to SCR 20:1.15(d). The respondent attorney had no prior discipline.

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Lack of Diligence; Failure to Communicate

Violation of SCR 20:1.3 and 1.4(a)

A woman's spouse died in October 2000. At the time of the man's death, he had a trust that left his half-interest in his real estate and all of his "personal property" to his wife. The man had two grown children from his previous marriage and these children were named as cotrustees of his trust.

A dispute arose between the wife and the children of the deceased man as cotrustees of the trust. Therefore, in November 2000, the wife met with the respondent attorney, and he agreed to represent the wife in protecting her interests.

The children's attorney sent the respondent attorney a letter in August 2001, to confirm with the respondent attorney that he had no problem with how the children's attorney wanted to interpret "personal property."

There is no dispute that the respondent attorney received this letter, and that he did not respond to it. Further, the respondent attorney received phone messages from the children's attorney on four separate dates in late September and early October 2001. Finally, in early October 2001, the children's attorney wrote to the respondent attorney stating that because he had not heard from the respondent attorney, he could only assume that the respondent attorney had no objection to proceeding with the administration of the trust in the manner that the attorney had proposed in his August 2001 letter.

In January 2002, the children's attorney informed the respondent attorney by letter that the assets of the trust had been transferred as proposed in his August 2001 letter. Five days later, the wife terminated the respondent attorney's representation and picked up her file. It was at this time that she first learned of the children's attorney's letters and the administration of the trust.

There are a large number of documented emails and letters that the wife sent the respondent attorney from the time he commenced representation in November 2000 until he was terminated in January 2002. The wife received three letters from the respondent attorney over the course of the representation, but none of the letters addressed any of the wife's concerns. The letters generally requested meetings with the wife.

The respondent attorney had conversations with the children and their previous attorneys to try to settle the matter; however, he did not adequately communicate this to the wife. The respondent attorney also admitted not responding to any of the children's attorney's letters or phone calls, nor did he discuss with the wife the contents of the letters.

By failing to respond to the children's attorney's inquiries or otherwise acting for the purpose of interpreting the trust language, the respondent attorney violated SCR 20:1.3. Further, by failing to communicate to the wife the status of the case, failing to respond to her inquiries, and failing to inform her of the children's attorney's letters and attempts to interpret the trust language, the respondent attorney violated SCR 20:1.4(a). The respondent attorney had no prior discipline.

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Failure to Communicate

Violation of SCR 20:1.4(a)

The respondent attorney represented a woman in her post-divorce child custody dispute. The representation began in July 2000.

In January 2001, the court-appointed guardian ad litem spoke to the respondent attorney's client by phone and advised the woman specifically as to what documents and information the guardian ad litem would need for representation of the child. In February 2001, the court ordered that the woman had to provide certain information about the child by March 8, 2001, and that she had to meet with the guardian ad litem and provide certain other information by May 1, 2001. The hearing date was changed as well from March 2001 to June 2001. There is no documentation that shows that the respondent attorney ever provided the scheduling order or the dates therein to the woman. The respondent attorney and the woman did communicate by telephone sometime around late February 2001, and the woman acknowledged that the respondent did indicate some deadlines to her at that time.

The respondent attorney received letters from both the guardian ad litem and from opposing counsel between late February 2001 and mid-March 2001, reminding the respondent attorney that her client needed to provide certain information by the specific dates. The next communication between the respondent attorney and the woman, however, was not until April 2001, when they discussed the change in court dates. The guardian ad litem sent another letter on April 11, 2001, and the woman faxed certain information to the respondent attorney in late April 2001. The respondent attorney forwarded that information to the guardian ad litem and opposing counsel; however, that information apparently was incomplete.

In early May 2001, the opposing attorney filed a notice of motion and motion for sanctions for the woman's failure to comply with the court scheduling order. The respondent attorney spoke with the woman on May 3 and May 7, 2001, attempting to resolve the custody case. The woman also spoke with the guardian ad litem on May 7, 2001, and it was from the guardian ad litem that the woman first learned of the motion for sanctions. The court found the woman in contempt at the hearing in May 2001, and assessed $602.50 in attorney fees in favor of the woman's former spouse. The woman eventually paid this amount to the opposing attorney. The day after the hearing, the respondent attorney signed a motion to withdraw. The court signed an order about a week later permitting the respondent attorney to withdraw. The child custody case subsequently was resolved.

Because the respondent attorney failed to notify the woman of the scheduling order and specific deadline dates and also failed to notify the woman of the impending hearing on the motion for sanctions, the respondent attorney violated SCR 20:1.4(a). The respondent attorney had no prior discipline.

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Committing a Criminal Act; Engaging in Probate Neglect

Violations of SCR 20:8.4(b), 20:1.3, and 22.03(6)

In May 2002, an attorney was convicted of battery, contrary to Wis. Stat. section 940.19(1), a Class A misdemeanor, and was sentenced to two years on probation with conditions. When the attorney's probation agent subsequently brought proceedings to revoke probation, the attorney elected to refuse probation and complete a jail sentence instead. In committing an act that led to his conviction for battery, the attorney violated SCR 20:8.4(b), which states it is professional misconduct for an attorney to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects."

In an unrelated matter, the same attorney was hired to probate an estate. The attorney opened an informal estate in March 2000. The attorney failed to file an inventory until January 2002, despite having received a notice from the court. The attorney attributed the delay to an illness that the attorney was suffering and personal problems. In taking approximately 22 months to file an inventory and in failing to proceed with completion of the estate in a timely manner, the attorney violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client. During the investigation of the grievance involving the estate, the attorney failed to respond to two letters from the OLR staff, in violation of SCR 22.03(6), which provides that an attorney's willful failure to provide relevant information or answer questions fully is misconduct.

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Communication with Party Represented by Counsel

Violation of SCR 20:4.2

An attorney's associate represented a mother in a custody dispute. The father in the custody dispute also was represented by counsel. A temporary order was issued on March 28, 2002, relating to the custody and placement of the parties' minor child.

On Friday evening, Aug. 16, 2002, the mother traveled from her home to the father's home several hours away to pick up her child for his weekend visitation with her. When the mother arrived at the father's home, no one answered the door, but the mother believed someone was inside. At approximately 7 p.m. the mother called her attorney's law office from a pay phone to speak with her attorney, the associate. The attorney's associate was not in, but the attorney answered the phone and spoke with the mother. The attorney knew that his associate represented the mother, and also knew that the father was represented by another attorney.

In an effort to "facilitate the startup of visitation for that weekend" and to establish communication between the mother and the father, the attorney placed two three-party calls to the father's telephone number and both times left messages on the father's answering machine. The attorney conveyed information regarding visitation in both messages.

In between the two messages left on the father's answering machine, the attorney called the residence of the father's father and left a message on that answering machine as well.

The father's attorney did not authorize the attorney's contact with the father. The attorney did not attempt to contact the father's attorney before making the telephone calls to the father and the father's father and leaving messages on their answering machines.

By leaving messages on the father's answering machine when he knew that the father was an adverse party represented by counsel, the attorney knowingly communicated about the subject of the representation with a party he knew to be represented by a lawyer without that lawyer's consent, in violation of SCR 20:4.2.

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Lack of Diligence in Criminal Appeal; Failure to Comply with Court Orders; Failure to Respond to the OLR

Violations of SCR 1.3, 20:1.16(d), 20:3.4(c), and 22.03(2)

In September 2001, a man retained an attorney to pursue post-conviction relief concerning the man's criminal conviction in circuit court; the man's family paid the attorney $4,000. After discussions between the attorney and the man about the case, the decision was made to file an appeal.

In January 2002, the attorney filed a notice of intent to pursue post-conviction relief with the circuit court. In May 2002, the attorney filed a motion to extend time to file a post-conviction motion or notice of appeal with the court of appeals. The court of appeals granted the motion and extended the time for the filing of a post-conviction motion or appeal to the end of June 2002. The attorney filed a notice of appeal at the end of June 2002. On July 25, 2002, the court of appeals ordered that the statement on the transcript be filed no later than Aug. 9, 2002.

In September 2002, the man sent the attorney a letter in which he stated that he was firing the attorney because he had not filed a brief in his case or requested an extension of time in which to file the brief and had not filed a statement on the transcript. The man also requested a refund and a copy of his file. Around the same time, the court of appeals also received a letter from the man in which the man indicated that he wanted to discharge the attorney and proceed pro se due to the attorney's failure to timely file the statement on the transcript and appellate brief.

The court of appeals ordered the attorney to provide an explanation to the court by the end of September 2002 regarding the attorney's failure to timely file a brief in the man's case. The court stated in its order that even though the attorney had indicated in a pre-appeal motion that the transcripts had already been filed, the attorney still should have filed a statement on the transcript in compliance with appellate rules after
the appeal was filed. The court noted that the attorney's failure to file the statement on the transcript had no adverse effect on the man. The attorney did not provide an explanation to the court as ordered.

At the end of September 2002, the man sent the attorney a letter again requesting a copy of his file. Two weeks later, the attorney provided a refund in the amount of $4,000 to the man's father. In correspondence sent with the refund, the attorney stated that he would provide a copy of the man's file to successor counsel once the man's father notified the attorney of the name of successor counsel. On Nov. 14, 2002, the man's father picked up the man's file from the attorney's office.

In October 2002, the court of appeals again ordered the attorney to provide an explanation by the end of October 2002 regarding his failure to file a brief. The court stated that if the attorney did not provide the explanation as ordered, it would set a date for the attorney to show cause why he should not be held in contempt of court. The attorney did not provide an explanation to the court as ordered.

At the beginning of November 2002, the court of appeals removed the attorney as counsel of record for the man and granted the man an extension until the end of December to file his brief. The court ordered the attorney to appear before the court to show cause why he should not be held in contempt of court. The attorney did not appear before the court as ordered, and the court of appeals issued a bench warrant for the attorney. The court ordered that the attorney would be released upon the payment of $500.

On Dec. 5, 2002, the OLR staff mailed a copy of the man's grievance to the attorney and informed him that, pursuant to SCR 22.03(2), he was required to provide a written response on or before Dec. 20, 2002 that fully and fairly disclosed all facts and circumstances pertaining to the alleged misconduct. The letter further advised the attorney of his duty to cooperate with the OLR investigation under SCR 21.15(4), 22.001(9)(b), 22.03(2), and 22.03(6). No response was received from the attorney.

On Jan. 3, 2003, the OLR staff sent a follow-up letter to the attorney by first-class mail and certified mail reminding the attorney of his duty to cooperate and advising him that SCR 22.03(4) authorized the OLR director to file a motion with the Wisconsin Supreme Court seeking the suspension of the attorney's license for willful noncooperation. The letter requested that the attorney's written response to the grievance be submitted to the OLR no later than Jan. 13, 2003. No response was received from the attorney.

On Jan. 15, 2003, the OLR staff sent a third letter to the attorney by first-class mail, certified mail, and personal service. The letter informed the attorney that in order to avoid being subject to a motion filed pursuant to SCR 22.03(4), his written response to the grievance had to be filed with the OLR by Jan. 22, 2003. The attorney was personally served with the letter at his office on Jan. 15, 2003. On Jan. 24, 2003, the attorney called the OLR staff and requested an extension of time in which to file his response. Staff granted an extension to Jan. 29, 2003. On Jan. 28, 2003, staff received a phone call from counsel for the attorney who stated that he had been retained by the attorney.

In early February 2003, the attorney mailed a letter of apology to the court of appeals and enclosed a $500 check. The court of appeals vacated the bench warrant and sanctioned the attorney in the amount of $500 in costs for his failure to respond to its orders. The court accepted the respondent's $500 check as payment for the sanction.

By failing to file a statement on the transcript, and by failing to file a brief in the man's case or request an extension of time in which to file the brief, the attorney failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

By failing to file a motion to withdraw as the man's counsel, the attorney failed to take steps to the extent reasonably practicable to protect his client's interests, in violation of SCR 20:1.16(d).

By failing to comply with the orders from the court of appeals, the attorney knowingly disobeyed obligations under the rules of a tribunal, in violation of SCR 20:3.4(c).

By failing to respond to the OLR staff's letters of Dec. 5, 2002, and Jan. 3, 2003, until after receiving a third request that was personally served on the attorney on Jan. 15, 2003, the attorney failed to fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail with a request for a written response, in violation of SCR 22.03(2).

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Failure to Promptly Deliver Funds to a Third Party; Failure to Cooperate in a Landlord/Tenant Matter

Violations of SCR 20:1.15(b) and 22.03(6)

An attorney was retained to represent a landlord in an action against Tenant A and Tenant B, who had broken their lease. Tenant B agreed to a payment plan, and judgment was entered against Tenant A only. Both tenants began making payments to the landlord via the attorney. Four months later, in response to a phone inquiry, the attorney sent Tenant A's husband a letter stating that a large portion of the judgment and additional attorney fees were still owing.

Tenant B stopped making payments and the landlord commenced a wage garnishment action against him. The attorney did not represent the landlord in this matter. All wage garnishment payments went directly to the landlord.

Five months later, the attorney informed Tenant A's husband that the same amount was still owed. He remitted that amount to the attorney that same month. After becoming aware of the garnishment payments the landlord was receiving, the attorney realized they had over-collected. The attorney totaled the original judgment, a docketing fee, post-judgment attorney fees, the garnishment action filing fee, and interest related to the garnishment action, divided that total in two, subtracted the amount each tenant had paid, and issued refunds accordingly.

The attorney received the statutorily allowed attorney fees as part of the judgment and conceded that it was im-proper to collect further attorney fees. The attorney also conceded that it was improper to collect from Tenant A the filing fee and interest related to the wage garnishment action against Tenant B.

During the course of the investigation, the attorney twice failed to respond to the OLR staff's request for further information until being personally served with requests to do so.

By failing to return to the tenants those monies he was not entitled to receive, the attorney failed to promptly deliver to a third person any funds the third person is entitled to receive, in violation of SCR 20:1.15(b). By failing to respond to staff's requests for information, the attorney failed, during the course of an investigation, to provide relevant information, in violation of SCR 22.03(6).

As a condition of the reprimand, the attorney was ordered to reimburse both tenants. The attorney had no prior discipline.

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Conflict of Interest; Failure to Expedite Litigation

Violation of SCR 20:1.7(a) and 20:3.2

In September 2000, a couple retained the respondent attorney to represent them in the sale of their home.

The clients' property consisted of two lots: one contained a residence, and the other was vacant. Relying on a title insurance commitment, the respondent attorney used both lots as the legal description and performed a real estate tax proration calculation based on the previous year's real estate taxes for both lots. The clients had intended to keep the vacant lot and sell only the lot containing the residence.

At the closing, the husband noticed the legal description error and informed the respondent attorney that only Lot 2 was to be sold. The respondent attorney corrected the legal description on all the closing documents, but he did not recalculate the real estate tax proration.

Sometime after the closing, the husband realized that the real estate tax proration was not correct. He contacted the respondent attorney and the owner of the title company to ask them to correct the problem. When the husband did not get a response, he filed a small claims action against the respondent attorney and the title company seeking judgment for $271. Another attorney represented the husband in the small claims action.

At a hearing in July 2001 the respondent attorney made an acceptable offer of settlement. At the respondent attorney's request, the terms of the settlement were not put on the record. The court directed that the settlement be put in writing as a stipulation for dismissal.

The husband's attorney forwarded to the respondent attorney a proposed judgment on stipulation. The respondent attorney then sent a letter to opposing counsel, which stated that after consultation with his client, the defendants in the case would not accept the stipulation previously discussed in this action, and since the stipulation was not dictated into the record, there could be no judgment entered.

The hearing was reconvened in October 2001, before the same court commissioner. At the conclusion of the hearing, the court commissioner found that the respondent attorney's not putting the stipulation on the record was done to delay the case. The court commissioner ruled in favor of the husband and awarded him the judgment amount and actual attorney fees and other costs.

The respondent attorney has satisfied that judgment.

By representing himself and the title company in a small claims case in which both were defendants and the main issue in the case was liability for the failure to correct a real estate tax proration, the attorney represented a client when the representation may have been limited by his own interests, contrary to SCR 20:1.7(b). In reaching a stipulated settlement with the opposing party, avoiding having that stipulation read into the record, and later refusing to sign a written stipulation thus requiring the opposing party to continue the hearing, the attorney failed to make reasonable efforts to expedite litigation, contrary to SCR 20:3.2.

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Lack of Diligence; Lack of Communication; Duties upon Termination of Representation

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

The respondent attorney represented a client who was injured in March 1997. The client pursued a worker's compensation claim, but the Department of Workforce Development (DWD) denied the client's request for surgery. The client retained the respondent attorney in August 1997 to pursue an appeal of the decision.

The attorney sent the hearing application to the DWD in August 1997. The attorney had no further contact with the client prior to January 2003.

The client sent a letter to the attorney in January 2003, informing him that he was fired from her case. The client also requested in this correspondence that the attorney send her copies of all the information he had in her file within the next 10 days.

In July 2003, the attorney sent the client materials that he generated or received relative to her claim for injuries and did not contest the client's assertions that he had not returned her calls. The attorney had not done anything on the case since 1997.

By failing to pursue the client's appeal after he sent the hearing application to the DWD, the attorney failed to act with reasonable diligence and promptness in representing a client, contrary to SCR 20:1.3. In failing to have contact with the client after their initial conference until January 2003, the attorney did not keep the client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a). By failing to provide the client's file to her until six months after she terminated his representation and requested her file, the attorney violated SCR 20:1.16(d).

The attorney was privately reprimanded in January 1999 for violations of
SCR 20:1.7(b) and 20:1.3.

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Incompetent Representation; Neglect; Failure to Communicate; Misrepresentation

Violations of SCR 20:1.1, 20:1.3, 20:1.4(a), (b), and 20:8.4(c)

An attorney was hired as successor counsel to represent a plaintiff in a pending law suit regarding a real estate transaction. The attorney was inexperienced in civil litigation. When the attorney undertook the case, the plaintiff's answers to interrogatories were overdue.

The plaintiff delivered answers to the interrogatories to the attorney, but the attorney failed to produce the answers for adverse counsel, even after their warning that they would move to dismiss if the answers were not forthcoming. The court issued a notice rescheduling the time (not the date) of an approaching pretrial conference, but the plaintiff's attorney did not note the time change when he received the court's notice. The defendants filed a motion to dismiss based upon the plaintiff's failure to prosecute the case. The plaintiff's attorney claims not to have received a copy of the motion prior to the pretrial conference.

The court held the pretrial conference at the newly scheduled time, but no one appeared for the plaintiff. The court granted the defendants' motion to dismiss with prejudice. The attorney and the plaintiff subsequently arrived at court at the previously scheduled time and were told that the case had been dismissed. The attorney told the plaintiff that he would try to find an explanation for what had occurred.

The attorney could have filed a motion to reopen the case but he did not do so. The attorney did not initiate any contact with the plaintiff for three months, although the plaintiff or her husband contacted the attorney four times during that time. The attorney initially told the plaintiff that he would instruct his secretary to send a letter of inquiry to the court. During later calls, the attorney stated that he had written to the court and was awaiting the court's response. In fact, the attorney had not written to the court.

The attorney met personally with the plaintiff three months after the case was dismissed and admitted that he had taken no action to reopen the case. The attorney's firm voluntarily made the plaintiff financially whole by paying the plaintiff an amount in excess of the amount of the plaintiff's original claim plus the retainer that the plaintiff had paid to the firm.

The attorney failed to provide competent representation as required by SCR 20:1.1. The attorney also violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client. The attorney violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a case and promptly comply with reasonable requests for information, and 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, the lawyer violated SCR 20:8.4(c), which provides it is misconduct for a lawyer to engage in conduct involving misrepresentation.

The reprimand is conditioned upon the attorney's attendance of at least six hours of CLE in the areas of pretrial practice or litigation within one year of signing the agreement. The attorney had no prior disciplinary history.

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Failure to Disclose a Fact to a Tribunal to Avoid Assisting a Client's Criminal or Fraudulent Act; Misrepresentation by Omission

Violations of SCR 20:3.3(a)(2) and 20:8.4(c)

A woman retained an attorney to represent her in her divorce. Opposing counsel had filed a petition for divorce, which stated that one child, age 19, had been born to the parties to the marriage. Contrary to Wis. Stat. section 767.085(1)(b), which requires that a divorce petition state each minor child of the parties and each other child born to the wife during the marriage, the petition did not disclose that another child, age 3, had been born during the marriage. The attorney states that during his representation of the wife, he was not aware of the requirement that the petition identify each child born to the wife during the marriage.

Prior to the attorney drafting the marital settlement agreement and the findings of fact, conclusions of law and judgment of divorce, his client told him that there was no possibility that the young child was her husband's child. She indicated that she would not identify the child's father, because she considered him to be a threat and she would sit in jail before she would identify him.

The parties subsequently entered into successful settlement negotiations and signed the marital settlement agreement drafted by the attorney. The marital settlement agreement did not disclose the existence of the young child.

The court entered the findings of fact, conclusions of law, and judgment of divorce, as drafted by the attorney. The divorce judgment stated that one child, the 19-year-old, was born to the parties and that no other minor children were born to the marriage.

Prior to drafting the divorce judgment, the attorney reviewed Wis. Stat. sections 767.07 and 767.24, which require that the divorce judgment identify any minor child of the parties or any child of the marriage. The attorney also learned that there was a rebuttable presumption that the young child was the husband's child. The attorney stated that he made certain that the documents he drafted were factually truthful and in compliance with Wis. Stat. sections 767.07 and 767.24, and indicates that the young child was not disclosed in these documents because he believed the child was not a child of the parties or a child of the marriage.

During the final hearing, the attorney conducted the following direct examination of his client:

Q. And have you had an opportunity to read the summons and petition?

A. Yes.

Q. Was the information contained in the petition true and correct?

A. Yes.

Later in the hearing, opposing counsel conducted the following cross-examination of the wife:

Q. ...there was only one child born?

A. Yes.

Q. [The 19-year-old] is now liberated?

A. Yes...

The attorney did not take any measures to correct his client's false testimony that everything in the summons and petition was true and correct nor did he take any measures to correct his client's false testimony that only one child was born during the marriage.

Later, the wife applied for medical assistance for herself and the young child. The child support agency filed a motion to reopen the divorce judgment because the judgment did not address the young child who had been born during the marriage and because the ex-husband was presumed to be the father.

At a court hearing held on the motion to reopen, the wife stated that her young child was born during her marriage and that her attorney was aware of the existence of her young child prior to the entry of the divorce judgment. After several court hearings, her ex-husband was ordered by the court to pay for the young child's health insurance.

By failing to disclose to the court in the marital settlement agreement and findings of fact, conclusions of law, and judgment that his client gave birth to another child during the marriage, and by failing to disclose to the court at the final hearing that his client gave birth to another child during the marriage, the attorney failed to disclose a fact to a tribunal when disclosure was necessary to avoid assisting a criminal or fraudulent act by his client and engaged in conduct involving misrepresentation by omission, in violation of SCR 20:3.3(a)(2) and 20:8.4(c).

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Communication with Represented Party

Violation of SCR 20:4.2

A woman was charged with several felony counts. After the charges were scheduled for trial, the prosecutor informed the woman's defense counsel of another criminal referral on the woman. The prosecutor also discussed a potential plea agreement settlement of the pending charges and of the new referral.

Without her attorney's knowledge, the woman subsequently contacted law enforcement and offered to make a controlled drug buy in consideration of the pending charges. Also without her attorney's knowledge, the woman approached the prosecutor in a public place and engaged the prosecutor in a conversation relating to the pending criminal charges. The woman was still represented by defense counsel. The conversation with the prosecutor lasted 10 minutes and related to the plea offer and other matters. Following the conversation, the prosecutor faxed a letter to the woman's defense counsel, describing the discussion that the prosecutor had had with the woman.

The woman's defense counsel sought to have the prosecutor disqualified from the case, but the court denied the defense motion. The court allowed the defense counsel to withdraw, because the woman would not follow her counsel's advice.

In speaking to a represented party regarding her pending case without the consent of her attorney, the prosecutor violated SCR 20:4.2, which states that in representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

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