Wisconsin Lawyer
Vol. 84, No. 7, July 2011
Public reprimand of Thomas P. DeMuth
The Office of Lawyer Regulation (OLR) and Thomas P. DeMuth, Milwaukee, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A Wisconsin Supreme Court-appointed referee approved the agreement, and issued the public reprimand on May 2, 2011, in accordance with SCR 22.09(3).
In December 2005, DeMuth voluntarily placed his State Bar of Wisconsin membership into inactive status. In February 2006, DeMuth was removed from the active rolls of the State Bar of Illinois. On Oct. 31, 2007, the State Bar of Wisconsin suspended DeMuth for failure to pay mandatory dues and assessments. The State Bar of Wisconsin reinstated DeMuth’s law license on Dec. 15, 2009. However, DeMuth remained on inactive status while he completed continuing legal education (CLE) requirements. On March 22, 2010, the State Bar of Wisconsin reactivated DeMuth’s Wisconsin law license. Currently, DeMuth remains ineligible to practice law in Illinois.
On Sept. 1, 2009, a Milwaukee law firm hired DeMuth as a shareholder. From Sept. 1, 2009 through Dec. 15, 2009, DeMuth practiced law, even though his law license had been suspended and was not reinstated until Dec. 15, 2009. Upon reinstatement, DeMuth continued to practice law, although his law license remained on inactive status until March 22, 2010.
During the time in which DeMuth’s law license was suspended or inactive, DeMuth and his law firm represented to the public on the firm’s website that DeMuth was a shareholder in the firm, that he was licensed to practice law in Wisconsin, and that he represented clients in corporate, real estate, and heath care matters. The firm’s website also noted that DeMuth had been admitted to the practice of law in Illinois, was a member of the Illinois State Bar Association, and was a member of the Milwaukee Bar Association. These representations were untrue – at the time, DeMuth was not authorized to practice law in either Wisconsin or Illinois and was not a member of the Illinois State Bar Association or the Milwaukee Bar Association.
By engaging in the practice of law or otherwise acting in a manner by which he purported to be authorized or qualified to practice law from Sept. 1, 2009 through Dec. 15, 2009, while his law license was suspended for nonpayment of dues, DeMuth violated SCR 10.03(6), which states, “Penalty for nonpayment of dues. If the annual dues or assessments of any member remain unpaid 120 days after the payment is due, the membership of the member may be suspended in the manner provided by the bylaws; and no person whose membership is so suspended for nonpayment of dues or assessments may practice law during the period of the suspension.”
By engaging in the practice of law or otherwise engaging in law work activity from Sept. 1, 2009 through Dec. 15, 2009, while his law license was suspended, DeMuth violated SCR 22.26(2), which states, “An attorney whose license to practice law is suspended or revoked or who is suspended from the practice of law may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel, except that the attorney may engage in law related work in this state for a commercial employer itself not engaged in the practice of law.” Both SCR 10.03(6) and SCR 22.26(2) are enforceable through SCR 20:8.4(f), which provides, “It is professional misconduct for a lawyer to: … (f) violate a … supreme court rule … regulating the conduct of lawyers….”
By engaging in the practice of law from Sept. 1, 2009 through March 22, 2010, while his law license was inactive, DeMuth violated SCR 10.03(3). SCR 10.03(3) provides, in relevant part, “No judicial or inactive member may practice law in this state. … No person engaged in the practice of law in this state in his or her own behalf or as an assistant or employee of an active member of the state bar, or occupying a position, the duties of which require the giving of legal advice or service in this state, may be enrolled as an inactive member.”
By engaging in the practice of law or otherwise acting in a manner by which he purported to be authorized or qualified to practice law from Sept. 1, 2009 through March 22, 2010, while his law license was inactive, DeMuth violated former and current SCR 10.03(4). Former SCR 10.03(4)(a) (effective through Dec. 31, 2009) stated, in relevant part, “Only active members may practice law. No individual other than an enrolled active member of the state bar may practice law in this state or in any manner purport to be authorized or qualified to practice law….” Current SCR 10.03(4)(a) (effective Jan. 1, 2010) provides, in relevant part, “No individual other than an enrolled active member of the state bar may practice law in this state or in any manner purported [sic] to be authorized or qualified to practice law… .” SCR 10.03(3) and former and current SCR 10.03(4) are enforceable through SCR 20:8.4(f), which provides, “It is professional misconduct for a lawyer to: … (f) violate a … supreme court rule … regulating the conduct of lawyers….”
By representing to the public on the firm’s website that DeMuth was a shareholder in the firm, was licensed to practice law in Wisconsin, and represented clients in corporate, real estate, and heath care matters during the period his law license was suspended or inactive, and, furthermore, in representing that he was licensed in Illinois, was a member of the Illinois State Bar Association, and was a member of the Milwaukee Bar Association, when he was not eligible to practice law in Illinois and was not a member of the Illinois State Bar Association nor the Milwaukee Bar Association, DeMuth made one or more false or misleading communications regarding his services, in violation of SCR 20:7.5(a) and former and current SCR 20:7.1(a). SCR 20:7.5(a) states, in relevant part, “A lawyer shall not use a firm name or letterhead or other professional designation that violates SCR 20:7.1.” Former SCR 20:7.1(a) and current SCR 20:7.1(a) state, in relevant part, “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it: “(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statements considered as a whole not materially misleading….” (Former and current SCR 20.7.1(a) contain the same language but are paragraphed differently.)
By authorizing, ratifying, or otherwise permitting the law firm to publish on its firm website information stating that DeMuth represented clients in corporate, real estate, and heath care matters during the period his Wisconsin law license was suspended or inactive, and, furthermore, in representing that DeMuth was licensed in Illinois, was a member of the Illinois State Bar Association, and was a member of the Milwaukee Bar Association, when DeMuth was not eligible to practice law in Illinois and was not a member of the Illinois State Bar Association or the Milwaukee Bar Association, DeMuth engaged in conduct involving dishonesty, deceit, or misrepresentation, in violation of SCR 20:8.4(c).
DeMuth has no prior discipline.
Public reprimand of Alan S. Robertson
The OLR and Alan S. Robertson, Blair, entered into an agreement for imposition of a public reprimand pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement, and issued the public reprimand April 1, 2011, in accordance with SCR 22.09(3). The reprimand is based on Robertson’s conduct in two matters.
In the first matter, Robertson served as attorney for the personal representative of an estate. A stipulation and order for substitution of attorney was signed and Robertson was replaced as attorney for the personal representative. For 17 months, Robertson failed to turn over to successor counsel the tax files pertaining to the estate, in violation of SCR 20:1.16(d). In violation of SCR 20:3.4(c), Robertson failed to obey a court order to deliver any files pertaining to the estate to successor counsel within 15 days or to show cause why he should not be punished for his failure to timely comply with successor counsel’s request to turn over the files.
In the second matter, a woman hired Robertson to represent her as special administrator of her husband’s estate. During the representation, Robertson advanced personal funds to the client in a manner that violated SCR 20:1.8(a). Robertson failed to take timely steps to advance and close the estate, in violation of SCR 20:1.3. In connection with a motion for an order authorizing the set-aside of $10,000 to the surviving spouse under Wis. Stat. section 859.25(1), Robertson violated SCR 20:3.3(a)(1) and SCR 20:8.4(c) by failing to disclose that he had already distributed all funds belonging to the estate. Robertson also filed a final accounting that did not accurately reflect the disbursements made on behalf of the estate, in violation of SCR 20:3.3(a)(1).
As a condition of the public reprimand, the court ordered Robertson to determine and pay any outstanding sanction with regard to an order for contempt entered against him in relation to the first matter. Robertson satisfied that condition.
Robertson received a private reprimand in 1995.
Disciplinary proceeding against Michael F. Hupy
On May 27, 2011, the supreme court publicly reprimanded Michael F. Hupy, Milwaukee, for professional misconduct and ordered him to pay $35,000 of the cost of the disciplinary proceeding. Disciplinary Proceedings Against Hupy, 2011 WI 38.
A majority of the court found that Hupy violated SCR 20:8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, when he sent a mass-mailing brochure to potential clients that contained a false statement about an attorney in a competing firm.
The OLR had charged three counts of misconduct against Hupy. The court deadlocked 3 – 3 on whether Hupy had additionally violated SCR 20:8.4(c) in connection with a separate advertisement. On the third count, the court concluded that the OLR failed to prove that Hupy violated former SCR 20:7.1(a) and SCR 20:7.5(a) (effective through June 30, 2007) with respect to a separate factual assertion made in connection with an advertisement.
Hupy had no prior discipline.
Reinstatement of John H. Fisher II
On March 16, 2011, the supreme court reinstated the law license of John H. Fisher II, Wausau, with conditions. In re Petition for Reinstatement of Fisher, 2011 WI 16.
Fisher was admitted to the State Bar of Wisconsin on June 17, 1985. His Wisconsin law license had been suspended since 1988 for noncompliance with CLE reporting requirements. Because Fisher’s suspension was for three or more consecutive years, his petition for reinstatement, filed on Aug. 18, 2009, was governed by SCR
22.28(1)(d) and SCR 31.11(1m).
Because of disputed issues of fact regarding Fisher’s petition for reinstatement, the court appointed a referee to hold an evidentiary hearing. Following that hearing, the referee recommended that Fisher’s petition for reinstatement be granted with conditions, a recommendation adopted by the court. The court further ordered that Fisher pay the cost of the proceeding and make arrangements with the State Bar of Wisconsin to pay any applicable bar dues and assessments.
Disciplinary proceeding against Eric L. Crandall
On April 26, 2011, the supreme court suspended the law license of Eric L. Crandall, New Richmond, for five months, effective May 31, 2011, for five counts of misconduct involving two separate matters. The court also ordered Crandall to pay the full cost of the disciplinary proceedings. Disciplinary Proceedings Against Crandall, 2011 WI 21.
In the first matter, Crandall failed to deposit a $3,000 advance-fee payment in his client trust account, contrary to former SCR 20:1.15(b)(4) (effective between July 1, 2004 and June 30, 2007). Additionally, Crandall failed to refund unearned fees of $2,000 for eight months after he had agreed to do so, in violation of former SCR 20:1.16(d) (effective through June 30, 2007). Finally, Crandall failed to file a written response to the grievance until after the court issued an order to show cause why his license should not be temporarily suspended for willfully failing to cooperate with an OLR investigation, in violation of SCR 22.03(2) and (6) and SCR 20:8.4(f).
In the second matter, Crandall coupled a new and unsupported request for payment of $4,045 in additional fees with a demand that the client immediately withdraw the grievance he had filed with the OLR. By attempting to interfere with a grievance investigation, Crandall violated SCR 21.15(4), SCR 22.03(6), and SCR 20:8.4(f), which require cooperation with OLR investigations. Crandall also failed to fully respond to this grievance until after the OLR filed a motion for an order to show cause why a temporary suspension should not be imposed, in violation of SCR 22.03(2) and (6) and SCR 20:8.4(f).
Crandall was previously disciplined. In 2006, his Wisconsin law license was suspended for three months as discipline reciprocal to that imposed in Minnesota for misconduct that included, among other things, a failure to cooperate with the disciplinary investigation. In 2008, the Wisconsin Supreme Court publicly reprimanded Crandall for, among other things, knowingly advancing a claim that was unwarranted under existing law and for failing to cooperate with the OLR’s investigation. In 2008, Crandall’s Wisconsin law license was suspended for 30 days, again as discipline reciprocal to that imposed in Minnesota, for misconduct that included a failure to cooperate with the disciplinary investigation.
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