Private Reprimand Summaries
The Wisconsin Supreme Court permits the Office
of Lawyer Regulation (OLR) to publish, for educational purposes, in
an official State Bar publication a summary of facts and professional
conduct rule violations in matters in which OLR imposed private
reprimands. The summaries do not disclose information identifying the
reprimanded attorneys. The following summaries of selected private
reprimands, imposed by OLR, are printed to help attorneys avoid similar
misconduct problems. Some of the summaries may indicate violations of
the rules that were in effect prior to Jan. 1, 1988. The current rules
proscribe the same types of misconduct. Under the new rules of lawyer
regulation, a court-appointed referee will impose private reprimands
with consent of the attorney. See SCR 22.09 (2000).
Deducting Attorney Fees from Client Trust
Account Without Client's Consent; Unreasonable Fee
Violations of SCR 20:1.15(d) and 20:1.5(a)
A woman hired an attorney to represent her in a divorce. The client
lived in Illinois. To facilitate communication with the client, it was
agreed that the attorney would copy a friend of the client, an Illinois
attorney, on any correspondence to the client. The Illinois attorney
took an active role in the case.
The final hearing was held in April 1997. The court denied
maintenance to the attorney's client and held the issue open for three
years. The attorney filed a motion to modify the maintenance order. The
court ordered the parties to submit briefs. The brief was written by the
Illinois attorney. In mid-December 1997, the court denied the Wisconsin
attorney's motion. In March 1998, the client fired the attorney and
hired successor counsel.
The parties had sold a residence and placed the proceeds in a money
market account. In mid-May 1997, the parties agreed to divide the
proceeds of $12,500 equally. Three days later, the attorney received the
proceeds and sent one-half of them to adverse counsel, leaving a balance
of more than $6,200. Also on that day, the attorney wrote to his client,
stating that he was confirming their telephone conversation of May 16,
in which she had authorized him to deduct his fees and expenses from her
share of the proceeds and to disburse the balance to her. The attorney
asked the client to call him immediately to discuss her response. The
attorney deducted more than $2,300 for his fees and expenses from the
client's proceeds, leaving a trust account balance of more than $3,900.
The attorney sent his client a check for more than $1,600, leaving a
balance of $2,200.
The client replied by letter, demanding her entire share of the
proceeds, with no deductions. The attorney sent his client the trust
account balance of $2,200, but the attorney did not return the sum that
he had deducted for fees. The client denied having a telephone
conversation with the attorney on May 16, 1997, or ever discussing
deducting attorney fees from the proceeds. By deducting his fees from
the trust account without his client's consent, the attorney violated
SCR 20:1.15(d).
In August 1997, the parties sold a farm and deposited the proceeds
into a bank, pending further court action. The Illinois attorney, on the
client's behalf, told the attorney that the attorney had no
authorization to retain any of the farm proceeds for attorney fees. In
early March 1998, a court ordered that the farm proceeds be disbursed.
Two weeks later, the client, through the Illinois attorney, terminated
the attorney's representation. On March 31, 1998, the bank disbursed the
client's net share of the farm proceeds, more than $4,900, by check
payable to the attorney's trust account for the client. (The attorney
was still counsel of record.) Also on March 31, the attorney signed a
stipulation/order for substitution of attorney of record.
In early April 1998, successor counsel demanded the $4,900 in the
trust account. The attorney replied by sending the client a check for
$105 and claiming a lien on the remainder of the trust account
funds.
The attorney sued the client for attorney fees. After a trial, the
court awarded the attorney a judgment, including costs, of almost
$4,500. The court disallowed almost $700 of the fees requested by the
attorney. In disallowing those fees, the court determined that the
attorney had billed his client for more than seven hours of paralegal
time at the attorney's hourly rate of $95 for formatting and typing the
brief on the motion for maintenance that had been written by the
Illinois attorney. By billing the client for more than seven hours of
paralegal time at the attorney's rate of $95 per hour, the attorney
charged an unreasonable fee, contrary to SCR 20:1.5(a).
Knowingly Disobeying an Obligation Under the Rules of a
Tribunal
Violation of SCR 20:3.4(c)
On June 19, 1998, an attorney was appointed by the State Public
Defender's office to represent a client on appeal from a criminal
conviction. On March 8, 1999, the attorney filed a Notice of Appeal - No
Merit with the trial court. Over the next several months, the attorney
failed to respond to several letters from the clerk and orders to show
cause from the court of appeals, demanding to know why the attorney had
failed to file the no-merit brief. Eventually, after the imposition of a
$1,425 forfeiture and a brief suspension from practice before the court
of appeals, the attorney filed the brief on Nov. 3, 1999.
After proceedings before a referee, the Wisconsin Supreme Court
concluded that, by failing to respond to numerous orders of the court of
appeals over seven months, the attorney knowingly disobeyed an
obligation under the rules of a tribunal, in violation of SCR 20:3.4(c).
The attorney had no prior discipline.
Incompetence, Failure to Consult and Communicate With Client, Lack
of Diligence, Lack of Supervision Over Nonlawyer Employee
Violations of SCR 20:1.1, 20:1.2(a), 20:1.3, 20:1.4(a), and
20:5.3(b)
A lawyer represented the petitioner in a divorce. The lawyer's level
of preparation for the final divorce hearing, particularly with respect
to gathering and presenting relevant evidence, was deficient to the
point that he failed to provide competent representation, in violation
of SCR 20:1.1. After agreeing to a post-trial briefing schedule, the
lawyer violated SCR 20:1.2(a) by failing to engage in any consultation
with the client as to possible arguments to advance in the brief. The
lawyer did not file a brief, contrary to SCR 20:1.3, which requires
reasonable diligence and promptness in representing a client. The lawyer
did not inform his client that he had not filed a brief, in violation of
SCR 20:1.4(a).
The lawyer stated that in the period covering his representation of
the client, he suffered generally from a lack of case file organization,
which he attributed, in part, to a secretary in his employ. The lawyer
acknowledged that he did not properly manage the secretary. By failing
to provide adequate oversight to his nonlawyer employee, the lawyer
violated SCR 20:5.3(b).
Improper Termination of Representation
Violations of SCR 20:1.16(a) and (d)
In late February 2000, a man hired an attorney to defend him in two
lawsuits. Both plaintiffs claimed that the man, at separate times, had
sold them his business and had subsequently violated the terms of the
purchase agreements by continuing to market products in competition with
the plaintiff. A temporary injunction was sought against the man.
The attorney agreed to represent the man in both matters. The
retainer fee covered the representation up to 30 days before any trial.
The attorney filed answers with counterclaims in both matters. The court
granted the request for an injunction.
In June 2000, the attorney agreed to a date in August 2000 for taking
the parties' depositions. The attorney promptly wrote to the client and
informed him of the time and location of his deposition. The client
fired the attorney in late July 2000. The attorney did not take action
to reschedule the deposition or move to withdraw from the pending
matters, contrary to SCR 20:1.16(d), which states, in part, that upon
termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client's interest, 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 client failed to appear for his deposition in August 2000, and
adverse counsel moved for sanctions. In early September 2000, the court
held a hearing attended by the client, appearing pro se, and adverse
counsel. The client informed the court that the attorney was no longer
representing him. The court instructed its staff to contact the attorney
and direct him to submit a motion to withdraw to the court. The court
file contains notations indicating that court staff subsequently left a
message with the attorney's secretary regarding the directive that the
attorney submit a motion to withdraw. The attorney, however, never
submitted a motion to withdraw, contrary to SCR 20:1.16(a)(3), which
states, in part, that a lawyer shall not represent a client or where
representation has commenced, shall withdraw from the representation of
a client, if the lawyer is discharged. The court's staff ultimately
removed the attorney as being the attorney of record while preparing a
notice of hearing for the case. The attorney complied with requests from
the client for his file and a partial refund of the retainer fee.
The attorney previously received a public reprimand, in part, for
neglect of a matter.
Incompetent Representation and Misrepresentations to a Court
Violations of SCR 20:1.1, 20:3.3(a)(1), and
20:8.4(c)
An attorney appeared on behalf of a juvenile defendant at a
delinquency pre-trial and sanctions hearing. At the outset of the
proceeding, the observations of a social worker and the court concerning
the attorney's possible intoxication were placed on the record. The
attorney answered in the negative when asked by the court if he had
consumed alcohol within the past 12 hours. The attorney again answered
in the negative when asked if he was under the influence of alcohol
consumed more than 12 hours prior to the hearing, which commenced at
approximately 11:15 a.m. The attorney's answers to the court concerning
his alcohol consumption were false, and they were made with knowledge of
their falsity.
The court allowed the attorney's appearance, but at the close of the
proceeding, the court called for bailiffs to administer a breath-alcohol
test to the attorney. The attorney told the bailiffs he knew what the
result would be and that he was ashamed. The attorney tested positive
for alcohol, indicating a .08 percent blood-alcohol level. The court
then removed the attorney as counsel for the juvenile defendant and
vacated all proceedings that had occurred that day.
By appearing on behalf of a client while impaired by alcohol, the
attorney violated SCR 20:1.1, which requires an attorney to provide
competent representation. By knowingly providing the court with false
answers concerning the extent of his alcohol consumption, the attorney
violated SCR 20:3.3(a)(1) and 20:8.4(c).
Unreasonable Fee and Failure to Communicate the Basis or Rate of
Fee
Violations of SCR 20:1.5(a) and 20:1.5(b)
In February 1998, a woman paid an attorney a $2,000 retainer to
initiate divorce proceedings against her husband. The fee agreement
provided that the attorney's fees would be based on an hourly rate of
$200 and an "ultimate fee," to be determined at the completion of the
action, based on the combination of the factors listed in SCR 20:1.5(a).
The agreement did not indicate how those factors would lead to
determination of the ultimate fee. The agreement also provided that
semi-monthly billing statements would be sent to the woman. In January
1999, a settlement was reached the day before the trial date was
scheduled.
From February 1998 through October 1998, the woman received nine
invoices, which included an itemization of the services provided and the
charges for each service. In October 1998, the attorney fees charged by
the attorney totaled approximately $16,000. In February 1999, the woman
received a final bill in the amount of approximately $43,000 for
services rendered for the period from November 1998 through February
1999. This final bill did not include an itemization of services or
charges.
Sometime after receiving the final bill, the woman questioned the
attorney about the amount of the bill, and the attorney indicated that
he had added to his attorney fees an extra $25,000 as a "bonus." The
woman filed an application for fee arbitration with the State Bar of
Wisconsin, having paid the attorney approximately $34,000.
The attorney indicated that, in determining his "ultimate fee" of
approximately $25,000, he took into consideration the amount and the
character of the services rendered; the complexity of the case; the
expertise required; the amount of money and property involved; his
professional skill, experience, and standing in the legal community; and
the benefits derived by the woman.
The Fee Arbitration Panel found, among other things, that the
"ultimate fee" was ambiguously defined in the fee agreement and was
likely to have resulted in substantial confusion for the woman; the
amount of the "ultimate fee" was unreasonable; the attorney did not
provide semi-monthly bills to the woman as required by the fee
agreement; and the reasonable attorney fees were approximately $39,000,
instead of the $59,000 in attorney fees that the attorney had billed the
woman.
By attempting to charge the woman an additional fee of approximately
$25,000, the attorney charged an unreasonable fee, in violation of SCR
20:1.5(a). By not adequately explaining the terms of the fee agreement
to the woman within a reasonable time of commencing the representation,
the attorney failed to communicate the basis or rate of his fee in
violation of SCR 20:1.5(b).
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