Wisconsin Lawyer
Vol. 82, No. 11, November 2009
Lack of Diligence; Failure to Communicate; Failure to Promptly Refund Fees; Failure to Cooperate with OLR
Violations of SCR 20:1.3, 20:1.4(a) and (a)(3) and (4), 20:1.16(d), and 22.03(2)
A man convicted of one count of second degree intentional homicide hired an attorney to review his file for any possible postconviction claims. Relatives of the man paid the attorney a flat fee of $10,000.
The attorney failed to provide the promised written results of his review of the client’s file until approximately three years after he was hired. In addition, the attorney failed to meet the deadline to file a postconviction motion or notice of appeal, or file for an extension to do so, despite having already been granted numerous extensions, all in violation of SCR 20:1.3.
The attorney also failed to keep the client adequately updated as to his case status, both before and after the grievance was filed, in violation of former SCR 20:1.4(a) and current 20:1.4(a)(3) and (4).
After the client informed the attorney that he wished to terminate the representation, the attorney failed to promptly refund fees to the client and failed to promptly provide the client with an outline of his potential claims, despite the attorney’s repeated promises that he would do so, in violation of SCR 20:1.16(d).
Finally, in violation of SCR 22.03(2), the attorney failed to timely and fully respond to the OLR’s initial written inquiry regarding the client’s grievance until after the OLR pursued an order to show cause under SCR 22.03(4).
In a second matter, a man convicted of one count of first degree intentional homicide hired the attorney to explore the possibility of obtaining relief in federal court. The man’s sister paid the attorney $10,000, which covered the cost of the attorney reviewing the client’s case for possible federal habeas relief.
Before he was discharged, the attorney failed to inform the client that, because the attorney had miscalculated a filing deadline and that deadline was actually two months later than what the attorney believed it to be, the attorney would not be providing the client with an outline of potential claims by a previously promised date, in violation of former SCR 20:1.4(a).
After the client discharged the attorney and requested a fee refund and the return of the documents provided to the attorney, and after the attorney repeatedly promised to honor those requests, the attorney failed to promptly provide a fee refund or return the documents. The attorney also failed to respond to correspondence from the client after his discharge, all in violation of SCR 20:1.16(d).
Finally, the attorney failed to timely and fully respond to the OLR’s initial written inquiry regarding the grievance for more than three months, in violation of SCR 22.03(2).
The attorney was experiencing a series of family problems during both the representations and the OLR’s investigations.
The attorney had no prior discipline.
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Failure to Supervise Lawyers; Failure to Communicate; Failure to Timely Return Case File and Advanced Fee
Violations of SCR 20:5.1(a) and (b), 20:1.3, 20:1.4(a), and 20:16(d)
An attorney and his law firm represented two clients. The attorney assigned subordinate attorneys to represent the clients.
In the first matter, the firm was hired to appeal denial of a professional license to the client. Over the course of a year, the assigned attorney failed to advance the case, send accurate correspondence to the licensing agency, or promptly respond to the client’s phone calls, letters, and faxes requesting information. The client terminated the representation, citing the lack of responsiveness and progress. The client made numerous requests for the case file and return of unearned fees. After becoming aware of the client’s complaints, the supervising attorney, contrary to former SCR 20:5.1(a) and (b), took no reasonable remedial action to ensure that his subordinate complied with SCR 20:1.3 and 20:1.4(a). The supervising attorney failed to promptly respond to the client’s request for the case file and delayed in turning over the client’s file and unearned fees for more than two years, contrary to SCR 20:1.4(a) and 20:1.16(d).
In the second matter, the firm represented an incarcerated man who was attempting to overturn an adverse administrative hearing decision that resulted in his transfer to maximum security. For more than a year, two subordinate attorneys delayed preparation, filing, and proper service of a writ of certiorari. After notifying the firm five times that the writ had not been served, the court dismissed the action for failure of service. The subordinate attorneys did not explain to the client the reasons for the delays or the problems with the service until after the dismissal. The supervising attorney was not made aware of his subordinates’ mistakes and inadvertence until after the dismissal; however, during the representation, he failed to oversee the matter in any meaningful way or have a system in place to ensure compliance with SCR 20:1.3 and 20:1.4(a), in violation of former SCR 20:5.1(a) and (b).
The lawyer had a 2002 private reprimand.
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Failure to Provide Competent Representation; Engaging in Conflict of Interest
Violations of SCR 20:1.1 and 20:1.7(b)
A woman hired a lawyer to represent her in her divorce. The lawyer had a professional relationship and friendship with the adverse party, circumstances that were known to the client when she hired the lawyer. While the lawyer did inform the client that she would withdraw if the divorce became contentious, she did not engage in the requisite consultation and did not obtain the written conflict waiver required under former SCR 20:1.7(b) (effective before July 1, 2007).
While the divorce was pending, the client and the lawyer learned that before the divorce action was filed, the adverse party had obtained a significant financial recovery through settlement of a civil claim to which the client was not a party. The lawyer did not perform any discovery to determine the amount of funds received, whether the adverse party possessed the funds, or if they were otherwise available to the adverse party and potentially to the lawyer’s client. Although the marital settlement agreement was renegotiated on terms somewhat more favorable to the client, the lawyer’s failings with respect to obtaining information about the adverse party’s financial circumstances provided evidence that the lawyer violated SCR 20:1.1, which requires competent representation.
The lawyer had no prior discipline.
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Failure to Advise Client of Case Status; Failure to Respond to Requests for Information; Failure to Return Client Property
Violations of SCR 20:1.3, 20:1.4(a) and (a)(3), and 20:1.16(d)
In early 2005, a man hired an attorney to represent him in retrieving guns that had been seized by federal agents. The client delivered to the attorney the original ownership documents for the guns. Between then and May 2008, the client called the attorney dozens of times, but the attorney never responded. The attorney sent one letter around March 2005, explaining that the attorney was going on National Guard duty abroad.
The client was not told that a hearing had been held on March 22, 2005. The attorney assigned responsibility for the hearing to one of his associates, who failed to appear because of illness. The court entered a judgment against the client, and the firearms were forfeited. The associate filed a motion to re-open, which was denied on May 2, 2005. The attorney did not learn of the case status until May 2008. On April 11, 2008, the attorney issued the client a refund of $300, but the attorney did not return the original gun-ownership documents.
Between 2005 and 2008, by failing to keep abreast of the case status and by failing to investigate the matter after the client repeatedly contacted his office requesting information, the attorney violated SCR 20:1.3, which provides, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
By failing to keep the client informed of the case status, particularly that a judgment had been entered against him, and by failing to respond to the client’s requests for information regarding his case, the attorney violated former SCR 20:1.4(a) (effective before July 1, 2007), which provided “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information”; and 20:1.4(a)(3), which provides, “A lawyer shall keep the client reasonably informed about the status of the matter.”
By failing to return the client’s original gun-ownership documents when the matter concluded, the attorney violated former SCR 20:1.16(d) (effective before July 1, 2007), which provided, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.”
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Failure to Segregate Trust Property; Engaging in Prohibited Transactions; Deficient Record-keeping
Violations of SCR 20:1.15(a), (b)(1), and (3), (e)(4)a. and b., and (f)(1)g.
A lawyer maintained two trust accounts for a law firm, one to hold client funds and the other for holding funds belonging to the lawyer and members of the lawyer’s family. As a result of an April 2006 overdraft on the client-fund trust account, the OLR discovered a $1,900 shortfall in that account, which resulted from the lawyer’s failure to hold three fee advances in trust. The advances had been deposited to the law firm’s business account between 2003 and 2006, in violation of SCR 20:1.15(a) (effective before July 1, 2004) and 20:1.15(b)(1).
While the lawyer’s bookkeeper had allegedly reconciled the trust account on a monthly basis, the lawyer had not reviewed the reconciliations and nothing was done to address the three missing deposits. The lawyer indicated that the firm had not prepared and retained its reconciliations, in violation of SCR 20:1.15(f)(1)g.
The lawyer was a partner in a corporation that owned the building in which the lawyer’s firm was located. The firm rented space in that building from the corporation and collected monthly rents from the lawyer’s firm and another business in the building. More than $27,000 in rent was deposited to the trust account used to hold funds belonging to the lawyer. During that same period, the lawyer’s staff was directed to disburse more than $23,000 to pay the lawyer’s various personal obligations, including credit card bills and rent, in violation of SCR 20:1.15(b)(3).
The lawyer also was the trustee of a family member’s trust and used one of the firm’s trust accounts to manage that trust. In early 2006, the lawyer directed his staff to disburse two trust account checks, payable to “Cash,” in connection with the family member’s trust. Cash transactions are prohibited by SCR 20:1.15(e)(4)a. The lawyer also directed his staff to transfer $51,000 to and from the firm’s trust account for the family member’s trust. The transfers were made via telephone calls to the bank. Telephone transfers are prohibited by SCR 20:1.15(e)(4)b.
The lawyer had been privately reprimanded in 1992 in connection with a conflict of interest.
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Conflict of Interest; Candor toward Tribunal
Violations of SCR 20:1.7(a)(2) and 20:3.3(d)
A minor sustained severe and permanent injuries resulting from an ATV accident while with her mother at the rural home of the mother’s boyfriend. The minor’s parents were divorced and shared joint legal custody of the minor with primary placement with the mother. Following the accident, the minor’s father met with an attorney to represent the minor’s interests in connection with injuries and damages arising out of the ATV accident. The minor’s father informed the mother that he had hired a lawyer to represent the minor’s interests.
Several months later, the minor’s mother hired another attorney to represent the minor’s interests in claims for injuries sustained in the ATV accident. The attorney hired by the mother subsequently filed a summons, complaint, and ex parte petition for appointment of attorney and guardian ad litem (GAL). When the action was filed, the attorney hired by the mother had not yet been appointed GAL for the minor. The attorney did not provide the father or his attorney with any notice of the lawsuit. In his petition requesting to be appointed GAL for the minor, the attorney did not disclose to the court that the minor’s father had previously hired another lawyer to represent the minor’s interests regarding any claims stemming from the ATV accident. Absent this knowledge, the court granted the petition of the attorney hired by the mother and appointed him as both attorney and GAL for the minor.
The following day the attorney hired by the father became aware of the other attorney’s petition to be appointed attorney and GAL for the minor and filed a motion to intervene and for reconsideration of the order appointing counsel for the minor.
The court subsequently appointed an independent GAL. The matter was ultimately settled.
By agreeing at the request of the minor’s mother to represent the minor’s interest on claims stemming from the ATV accident, without addressing or obtaining waivers regarding the mother’s potential related claims of loss of society and companionship, and in the face of the conflict present because the mother was the girlfriend, and subsequently spouse, of the owner of the ATV and the land on which the accident occurred, who faced possible personal and financial exposure in connection with the claims, the attorney violated SCR 20:1.7(a)(2).
In failing to disclose to the court in his ex parte petition requesting to be appointed attorney and GAL for the minor that the father had previously hired an attorney to represent the minor’s interests in connection with any claims and damages relating to injuries the minor sustained in the ATV accident, the attorney violated SCR 20:3.3(d), which states, “In an ex parte proceeding, an attorney shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
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Commit Criminal Acts that Reflect Adversely on Lawyer’s Honesty, Trustworthiness, or Fitness as a Lawyer
Violation of SCR 20:8.4(b)
In June 2008, an attorney pleaded no contest to the misdemeanor offense of violating an injunction and entered into a deferred prosecution agreement (DPA). In October 2008, the attorney was convicted of a second offense of operating while intoxicated (OWI), a misdemeanor, and was sentenced to five days in jail and revocation of his driver’s license for 12 months. In October 2008, the attorney also was convicted of misdemeanor bail-jumping and was sentenced to one year of probation, sentence withheld, with the condition that he not possess or consume alcohol and that he attend alcohol abuse counseling at least once a week. The bail-jumping conviction resulted from the attorney violating the terms of his bond in the OWI case by drinking and getting into arguments with his girlfriend.
In January 2009, the attorney’s DPA was revoked for violating a condition of the agreement that he not engage in criminal conduct, and he was convicted of violating the injunction. The attorney was sentenced to 90 days in jail, sentence stayed, and one year of probation.
By engaging in acts leading to each of the separate convictions of misdemeanor violation of an injunction, misdemeanor bail jumping, and misdemeanor OWI second offense, the attorney in each instance 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 had no prior discipline.
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Lack of Diligence; Failure to Communicate with Client
Violations of SCR 20:1.3 and 20:1.4(a), (a)(3), and (a)(4)
In June 2001, an attorney’s law firm undertook representation of a man on a personal injury claim based on a June 15, 2001, automobile accident. Another attorney was initially assigned primary responsibility for the case, and that attorney eventually commenced a civil action on the client’s behalf on June 14, 2004. The next month, the respondent attorney assumed primary responsibility for the case.
In December 2004, the court issued a notice of hearing indicating that the case was set for dismissal calendar action at a hearing set for Dec. 30, 2004. The notice concluded, “If for any reason, this case should not be dismissed, please make your application for continuance prior to December 30, 2004.” No such application was filed, and neither the client nor anyone from the attorney’s firm appeared at the Dec. 30, 2004 hearing, causing the court to dismiss the action for want of prosecution. The attorney had not informed the client that the case was on the court’s dismissal calendar, and he did not inform the client of the dismissal of the case following the Dec. 30, 2004, hearing.
There was no communication between the attorney and the client regarding case status from the time of the dismissal until July 2007, when the client wrote the firm. The attorney acknowledged receipt of the inquiry in writing, indicating that he was looking into the matter and that he would write to the client in the near future, once his inquiry was concluded. The attorney wrote to the client on Jan. 25, 2008. The client, the respondent attorney, and the initial attorney met on Jan. 30, 2008. The client then learned of the case dismissal. The attorney attributed the case dismissal to an outside process server who failed to properly serve the suit and to an internal failure to calendar the file for review, perhaps stemming from personnel changes at the firm.
In failing to advance the client’s lawsuit, which was dismissed by the circuit court for want of prosecution, the attorney violated SCR 20:1.3, which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
In failing to inform the client of the December 2004 placement of the case on the dismissal calendar and the subsequent dismissal of the case that month, and in failing from the time of dismissal until January 2008 to keep the client informed as to case status, the attorney violated former SCR 20:1.4(a) (effective before July 1, 2007), and current 20:1.4(a)(3) and (4).
The attorney had no prior discipline.
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Failure to Provide Competent Representation; Lack of Communication; Failure to Abide by Client’s Decisions; Misrepresentation
Violations of SCR 1.1(b), 1.2(a) and (c), 1.4(b), and 8.4(a) and (c)
An attorney licensed to practice law in both Wisconsin and another jurisdiction consented to a private reprimand pursuant to SCR 20:8.5 and 22.22 as reciprocal discipline following findings by disciplinary officials in the other jurisdiction that: 1) the attorney violated its rules, comparable to SCR 20:1.1(b), 1.4(b), and 8.4(a) and (c); and 2) the attorney violated its rules comparable to SCR 1.2(a) and (c), 1.4(b), and 8.4(a) and (c).
In June 1990, the attorney maintained a law office in the other jurisdiction. The attorney was retained to handle an estate matter for a client’s aunt. The attorney reviewed a power of attorney, dated 1989, granted to the nephew.
On June 13, 1990, the nephew, as settlor and trustee, executed a living trust and trust. The attorney drafted the trusts and counseled the nephew to create them when he knew or should have known that a general durable power of attorney prohibited the nephew from creating a trust.
On Aug. 25, 1991, the aunt died. The attorney continued as counsel and represented the nephew in matters relating to the estate. Before probate action commenced, the attorney counseled the nephew to transfer and dispose of estate assets when he knew, or should have known, that the nephew had no authority to do so.
In 1992, the attorney commenced an independent probate of the estate and filed an appearance on behalf of the nephew, who was appointed independent personal representative of the estate.
During his representation of the nephew, the attorney failed to inform the nephew that the estate must be submitted to the probate court according to law.
In 1993, the attorney informed the court that the closing statement was true when he knew or should have known it was false because it did not include transfers made by the living trust and the family trust on June 13, 1990.
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Failure to Promptly Deliver Funds to a Third Party in a Criminal Matter
Violation of SCR 20:1.15(d)(1)
An attorney represented a woman on a theft charge. The woman was ordered to pay restitution to the victim. On the day of sentencing, a nonprofit organization drafted a check made payable to the victim. The memo line on the check indicated the check was for restitution to the victim. At some point, the attorney came into possession of the check.
Three years later, the victim called the local victim-witness-assistance program to ask why she had never received any restitution. It was then discovered that the restitution check was in the attorney’s client file. The payee of the check had since stopped payment on the check.
Soon thereafter, a second check was sent from the nonprofit organization to the victim. The check was for $1,439 less than the restitution order, however, because the organization no longer held enough money on the client’s behalf to pay the entire restitution amount.
The attorney acknowledged having the victim’s address and stated that he thought he sent the check, the check was returned to him, and he put the check in the client’s file awaiting further instruction. The attorney never thought to return the check to the payee and did not think of it anymore, until the call three years later.
By holding the original restitution check continuously, or holding it subsequent to its return following mailing, and by failing to take steps to ensure delivery of the check to the victim, the attorney violated SCR 20:1.15(d)(1).
As a condition of the reprimand, the attorney was ordered to make a restitution payment to the victim in the amount of $1,439.
The attorney was privately reprimanded in 1997. He was publicly reprimanded in 2004 and in 2006.
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Misrepresentation
Violations of SCR 8.4(c)
An attorney licensed to practice law in both Wisconsin and another jurisdiction consented to a private reprimand pursuant to SCR 20:8.5 and 22.22 as reciprocal discipline following findings by disciplinary officials in the other jurisdiction that the attorney violated its rule comparable to SCR 8.4(c) (engaging in dishonesty, fraud, deceit, or misrepresentation).
While working at a law firm, the attorney obtained economy-class airline reservations for travel to a deposition. When using the self-service check-in kiosk, the attorney inadvertently changed his reservation from economy class to first class and had to pay an additional $260. After completing the deposition, the attorney used a self-service kiosk to check in for his return flight and received an economy-class boarding pass as originally ticketed. The attorney submitted a travel reimbursement form to his law firm showing he spent an additional $260 for airfare for his return flight. The attorney knew or reasonably should have known that his travel reimbursement form was false, because he did not spend $260 on airfare for his return flight.
When asked by the firm’s accounting department to explain and document the airfare expenses on his travel reimbursement form, the attorney responded falsely that his flight was cancelled and rescheduled, he had to buy an upgrade ticket to get to the deposition, and he took an alternate flight to the deposition.
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Engaging in Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation
Violation of SCR 20:8.4(c)
An attorney signed an acknowledgement on a deed stating that the two persons signing the deed as the grantor’s agents personally came before him on a specified date, although they did not. One of the signers did not personally appear before the attorney on any date to acknowledge his signature on the deed, which the attorney subsequently recorded. The attorney’s conduct violated SCR 20:8.4(c), which states, “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
The attorney had no prior discipline.
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Charging Unreasonable Fee; Trust Account Violation; Failure to Refund Unearned Portion of Advanced Fee; Misrepresentation in a Disclosure
Violations of SCR 20:1.5(a), 20:1.16(d), 20:1.15(d), 22.03(6), and 20:8.4(f)
An attorney was hired by a married couple regarding a claim they wanted to file against a company that had brought them to the United States as farm workers. The husband also believed he was eligible for worker’s compensation, and the couple wanted to obtain new immigrant-status visas. The husband signed a fee agreement that stated the representation would be limited to factual and legal research and evaluation of the clients’ claims against the company. The couple paid the attorney an advanced fee of $2,000, and they agreed to be billed at the attorney’s hourly rate. The representation lasted approximately two weeks, and the only work the attorney performed to evaluate the clients’ claims was to take his own clients’ depositions.
By billing the clients for driving a check to the bank and drafting the fee agreement, for fees and costs related to taking the clients’ depositions, and for other activities that were of little or no value to the client; by failing to provide the clients with a meaningful evaluation of their claims or with any meaningful research; and by taking a judgment against the clients that included some charges the attorney had already agreed were inappropriate and then taking steps to collect on that judgment, the attorney charged an unreasonable fee, in violation of former SCR 20:1.5(a) (effective before July 1, 2007). By withdrawing the clients’ $2,000 advanced fee payment from his client trust account before reaching an agreement with them about the amount to which he was entitled, the attorney violated former SCR 20:1.15(d) (effective before July 1, 2004), and Disciplinary Proceedings against Marine, 82 Wis. 2d 602, 264 N.W. 2d 285 (1978), a decision regulating the conduct of lawyers, in violation of SCR 20:8.4(f). By failing to refund to his clients any portion of the advanced fee paid to him, the attorney violated former SCR 20:1.16(d) (effective before July 1, 2007). The attorney failed to provide accurate information to the OLR during its investigation, contrary to SCR 22.03(6) and 20:8.4(f).
The reprimand was conditioned on the attorney satisfying a judgment he had taken against his clients, refunding $743.15 to the clients, and completing within the next 24 months at least 12 hours of approved continuing legal education coursework in legal ethics.
The attorney had no prior discipline.
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Commit Criminal Act that Reflects Adversely on Lawyer’s Honesty, Trustworthiness, or Fitness as a Lawyer; Failure to Notify Supreme Court and OLR of Conviction
Violations of SCR 20:8.4(b) and 20:15(5), enforceable through 20:8.4(f)
On June 23, 2003, an attorney pleaded no contest and was convicted of a second offense of operating while intoxicated (OWI), a misdemeanor. On Aug. 13, 2003, the attorney was sentenced to 80 days in jail and 45 hours of community service. The attorney’s driver’s license was revoked for 18 months, and he paid a fine of $1,122. The attorney’s conviction stemmed from a traffic accident in which the attorney rear-ended another vehicle after both vehicles had been stopped at a stop sign.
The attorney did not report his second OWI misdemeanor conviction to the OLR or to the clerk of the supreme court within five days, as required by SCR 21.15(5). The conviction did not come to the OLR’s attention until 2009. The attorney said he did not report the conviction because he was unaware of the requirement in SCR 21.15(5) that an attorney report a conviction of any crime.
By engaging in conduct leading to a criminal conviction of a second OWI offense, 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.”
By failing to notify the supreme court clerk and the OLR of his conviction, the attorney violated SCR 21.15(5), enforceable through SCR 20:8.4(f), which provides, in part, that it is professional misconduct for a lawyer to violate a supreme court rule regulating the conduct of lawyers.
The attorney had no prior discipline.
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Conflict of Interest
Violations of SCR 20:1.7(a) and (b) and 20:1.9(a)
In January 2007 a man hired an attorney to perform legal services with regard to the estate of the man’s long-time girlfriend. For several years before her death, the man had lived with the woman in a home that she owned. At the time of her death, the woman had three adult siblings.
Shortly before her death, the woman signed a will, prepared by one of the man’s relatives, which named the man as the woman’s sole beneficiary. Several days later, after a bank employee accidentally stamped “copy” on the first page of the original will, the man arranged for the woman to sign a second copy of the same will.
The attorney’s written fee agreement with the man was ambiguous as to whether the attorney agreed to represent the man in his capacity as personal representative of the woman’s estate, to represent the estate itself, or to represent the man’s personal interests with regard to the assets belonging to the estate. In a subsequent grievance investigation, the attorney informed the OLR that he considered himself counsel for the man in both his individual capacity and in his capacity as representative of the estate. However, the attorney represented to the court and told opposing counsel and third parties that he was counsel for the estate, and the attorney took numerous actions as the purported counsel for the estate at the man’s direction.
In January 2007, the attorney prepared the necessary forms and assisted the man with filing an application for informal probate, seeking to have the man appointed as personal representative of the estate. The attorney attached to the application a document he and the man represented to be the original will. However, the document filed with the application was actually a composite of the two separate wills, put together to appear to be one original will.
Also in January 2007, after one of the woman’s siblings contacted the attorney and challenged the authenticity of the composite will, the attorney caused the original first page of the first executed will to be filed with the probate court, along with signed statements as to its authenticity. A few days later, the attorney drafted a demand for formal proceedings and caused the same to be filed with the court. Thereafter, the woman’s siblings filed written objections to the probate of the will and challenged the will as a product of undue influence.
In March 2007, during the pendency of the demand for formal proceedings, the petition to have the man named personal representative, and the siblings’ challenges to the will, the attorney prepared and filed a petition asking the court to name the man special administrator of the estate. The same day, letters of special administration were issued naming the man special administrator.
In April 2007, the attorney prepared and filed a claim against the estate on behalf of the man for approximately $69,000, representing value the attorney claimed the man had added to the woman’s estate through repairs the man performed on the woman’s home before her death and other amounts the man allegedly contributed to their shared household before her death. The attorney also filed a claim against the estate for his fees for representing the man’s personal interests in defending the will and pursuing the man’s personal claim against the estate. In subsequent communications with the court, counsel, and third parties, the attorney began to refer to himself as the man’s counsel in connection with the man’s personal interests in the estate assets. The attorney also continued to act as counsel for the estate and as counsel for the man in his capacity as special administrator.
In November 2007, the court ruled that the will presented for probate was the product of undue influence, and because the woman had no prior wills, the estate should pass by intestacy. The court named one of the siblings as special administrator in place of the man. Thereafter, while the attorney did not continue to hold himself out as counsel for the estate, he did continue to represent the man in his individual claims against the estate, and the attorney continued to advocate in support of the attorney’s own claim against the estate for his legal fees in representing the man. The attorney did not obtain the written consent of the newly appointed special administrator of the estate for the attorney’s continued representation of the man in his claims against the estate.
In August 2008, the court denied the man’s claim for $69,000 and denied the attorney’s claim for his legal fees in representing the man.
The attorney engaged in a conflict of interest prohibited under SCR 20:1.7(a)(2) and 20:1.7(b)(1) and (4) and former 20:1.7(b) (effective before July 1, 2007), by representing the man’s personal interests in the estate at the same time the attorney was representing the estate, when there was a significant risk that the attorney’s obligations to represent the man’s interests or the attorney’s obligations to preserve the estate for the lawful heirs or beneficiaries would be materially limited or affected by the attorney’s obligations to the other, and when it was not reasonable for the attorney to believe he could provide competent and diligent representation to each affected client.
The attorney also engaged in a conflict of interest prohibited under SCR 20:1.7(a)(1) and (2) and (b)(1) and (3) and former 20:1.7(a) (effective before July 1, 2007), by filing a claim against the estate on behalf of the man while also serving as counsel for the estate, when the man’s claim was adverse to the attorney’s and the man’s obligations to preserve the estate for the lawful heirs or beneficiaries.
The attorney also engaged in a conflict of interest prohibited under SCR 20:1.7(a)(1) and (2) and (b)(1) and (4) and former 20:1.7(a) (effective before July 1, 2007), by filing a claim against the estate for the attorney’s own fees incurred in representing the man’s personal interests, when the attorney’s claim was adverse to the attorney’s and the man’s obligations to preserve the estate’s assets for the lawful heirs or beneficiaries.
The attorney violated SCR 20:1.9(a) by continuing to represent the man in the man’s individual claim against the estate after the attorney formerly represented the estate, without first obtaining the written consent of the estate’s authorized
representative.
The attorney had no prior discipline.
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Lack of Diligence; Failure to Communicate
SCR 20:1.3; and 20:1.4(a) and (b)
An attorney was hired to seek a woman’s appointment as guardian for her developmentally disabled brother. The siblings’ parents had previously acted as guardians in another state, but they were becoming elderly, and the brother now lived in a group home in Wisconsin. Despite the sister’s repeated attempts to contact the attorney, he failed to start any guardianship proceedings. When the sister filed a grievance with the OLR, the attorney represented that he had intentionally waited for a new Wisconsin guardianship law to become effective and that he was then prepared to proceed. Based on evidence that the attorney was indeed proceeding, the OLR closed its file. After the attorney filed a guardianship petition with the court, however, he then failed to prepare and send the notices required to proceed on that petition. It was only after the sister filed a second grievance that the attorney finally achieved the guardianship appointment.
By failing to commence guardianship proceedings for almost two years after he was hired to do so, and by failing to follow through with the guardianship petition in a timely fashion, the attorney violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client. By failing to respond to reasonable inquiries and status requests from his client, the attorney acted contrary to former SCR 20:1.4(a) (effective before July 1, 2007) and current SCR 20:1.4(a)(3) and (4). By failing to explain to his client any benefit of waiting until a new guardianship law took effect before proceeding, the attorney failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, contrary to former SCR 20:1.4(b) (effective before July 1, 2007).
The attorney had no prior discipline.
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