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).
Failure to Hold Disputed Funds in Trust Until
Dispute Resolved
Violation of SCR 20:1.15(d) and the Standard of Conduct in Marine
A man hired the attorney to represent him in a divorce and paid a
nonrefundable retainer fee of $1,150. The fee agreement stated that a
final fee could not be determined at that time, but it was estimated to
be in the amount of $1,150, plus disbursements. The final fee was to be
based on hourly fees for court and noncourt time.
During an interim hearing, the attorney told the client that the
final fee would exceed the retainer, and the client said he would need
time to pay. The client states that the attorney agreed to accept
monthly payments, which the attorney denies.
The final hearing was held. The divorce judgment provided for
settlement proceeds to be paid to the client, subject to payment of
certain bills. Each party was to bear his or her own legal expenses. The
attorney received the client's settlement of more than $7,500 and
deposited the funds into his trust account. As ordered in the judgment,
the attorney paid a debt to a state agency, leaving a balance of
$4,043.65 in the trust account.
Two days later, the attorney delivered $2,043.65 to the client and
retained $2,000 in the trust account. The client demanded the remainder
of the funds, but the attorney refused. The client filed a grievance
against the attorney.
Unaware of the grievance, the attorney delivered $1,000 to the client
and paid himself the remaining $1,000. A month later, the attorney
prepared a final bill, showing that the client owed an additional
$1,432.75.
The Office of Lawyer Regulation (OLR) concluded that in paying
himself from his trust account without the knowledge or consent of his
client, the attorney violated the court's decision in Disciplinary
Proceedings Against Marine, 82 Wis. 2d 602, 264 N.W.2d 285 (1978), and
SCR 20:1.15(d). OLR issued a private reprimand to the attorney with the
condition that he complete a continuing legal education course regarding
trust account procedures within six months. The attorney received a
private reprimand in 1996 for a similar trust account violation.
Competence, Violation of Attorney's Oath, and
Conflict of Interest
Violations of SCR 20:1.1, SCR 40.15, and SCR 20:1.7(b)
A lawyer represented a woman and her minor children who had moved to
Wisconsin after the woman and the children's father had divorced in
another state. The woman, who had been ordered by the other state to
bring the children there for visitation with their father, had become
concerned that the children were at risk of sexual abuse during such
visitations.
Acting on the lawyer's advice, the woman did not comply with the
court's order to produce the children. The woman was found in contempt.
The court again ordered that the children be produced, and the lawyer
again advised against it. For a second time, the court found the woman
in contempt. Based in part on the woman's refusal to abide by court
orders, the father eventually prevailed on a motion for a change of
custody.
OLR concluded that in advising the woman not to comply with the court
orders, the lawyer failed to provide competent representation, contrary
to SCR 20:1.1, and failed to maintain the respect due to courts of
justice and judicial officers, contrary to SCR 40.15. OLR further
concluded that in representing both the woman and her children, the
lawyer violated SCR 20:1.7(b), which proscribes a representation of one
client if the representation may be materially limited by the lawyer's
responsibilities to another client, without consultation and written
consent from each.
Lack of Diligence and Failure to Promptly
Disburse Funds Held in Trust to Which Another was Entitled
Violations of SCR 20:1.3 and SCR 20:1.15(b)
An attorney was a longtime friend of a husband and wife. The husband
died in 1991, and the wife died in December 1995. The attorney was named
personal representative of the wife's estate and trustee of the couple's
living trust, which had been established in 1986. The wife devised her
residuary estate to the trust. The trust provided that after the last
grantor died, the trustee shall divide the remaining balance of the
trust assets into separate trusts for the couple's daughter, her
brother, and the brother's two children.
In early 1996, the attorney filed a petition for probate in the Cook
County, Ill., circuit court on behalf of the estate, and domiciliary
letters were issued on April 3, 1996. The attorney was identified as
petitioner and attorney for petitioner. Beginning in early 1996, the
daughter, who is a resident of Pennsylvania, began attempting to obtain
information about the estate from the attorney. When the daughter began
having difficulties, she retained local counsel to represent her
interests in the matter. The attorney then retained counsel to
communicate with the daughter's counsel. The inventory was filed
approximately 18 months after the opening of the estate.
The trust document provided that the trust assets were to be
distributed on Dec. 6, 1998; however, distributions were not made until
several months later. The trust document also provided that all trust
income should be distributed at least annually, and in April 1998, the
attorney forwarded to the daughter a Schedule K-1 that listed income the
daughter had to include on her 1997 taxes. However, the daughter had
never received the income because the attorney had failed to make the
annual distributions. As of December 1999, almost four years after the
petition for probate had been filed, the estate was still open.
OLR concluded that, by failing to close a fairly simple estate for
four years, the attorney failed to act with reasonable diligence and
promptness in representing a client, in violation of SCR 20:1.3. OLR
also found, that by failing to make annual distributions of the trust
income and failing to promptly distribute the trust's assets as of Dec.
6, 1998, the attorney failed to promptly deliver to a third person funds
that the third person was entitled to receive, in violation of SCR
20:1.15(b).
Lack of Competence and Failure to Communicate
in a Plaintiff's Legal Malpractice Action
Violations of SCR 20:1.1 and SCR 20:1.4(b)
An attorney was retained to represent a woman in a legal malpractice
action against four attorneys. At that time, the attorney had been a
member of the bar for less than one year. The woman had already filed a
complaint pro se, and two of the defendants had filed motions to dismiss
the complaint for failure to state a cause of action.
When the attorney was retained, there were five days remaining before
the six-month deadline for amending the complaint as of right. The
client and the attorney disagreed as to whether the client informed the
attorney of the urgent necessity for filing an amended complaint in that
short period of time. In any event, the attorney did not amend the
complaint before the deadline, but within a few weeks was on notice of
the motions for dismissal. Despite the notice, the attorney did not file
a motion with the court for permission to amend the complaint.
On the day of the hearing, the attorney filed a brief arguing against
granting the motions and for allowing amendment of the complaint. The
court granted the motions for dismissal as to the two attorneys, citing
in its decision the failure of the attorney to file a motion requesting
permission of the court to amend the complaint.
As to the two remaining defendants, the court subsequently issued a
scheduling order that included a deadline for filing witness lists.
Although expert witness testimony was necessary, the attorney states
that the client balked at the expense and questioned the need for them.
As the deadline approached, the attorney had not located less expensive
experts and had not persuaded the client to hire experts.
The attorney did not file any witness list by the deadline, not even
a list of the names of fact witnesses provided by the client. Opposing
counsel inquired about the list, and the attorney asked for "a couple of
days to respond." However, the attorney did not file a witness list, did
not request an extension from the court, and did not take other action.
The attorney did not advise the client that no witness list had been
filed and had not explained the matter sufficiently so that the client
understood the consequences of not naming experts. Opposing counsel
filed a motion to bar the plaintiff from calling any witnesses at trial
and for summary judgment because the case could not be proven without
expert witnesses, which the court granted. OLR took into consideration
that the attorney was very inexperienced and had no prior
discipline.
Lack of Diligence, Failure to Inform Client,
and Conflict of Interest
Violations of SCR 20:1.3, SCR 20:1.4(a), SCR 20:1.4(b), and SCR
20:1.7(b)
A lawyer was retained by a minor teenager and her parents to
represent them regarding injuries the young woman had sustained. The
lawyer developed a romantic interest in the young woman that he
expressed by sending her personal notes, offering her small gifts and
the use of his jeep, and inviting her to travel with him.
The young woman disclosed the lawyer's conduct to her aunt, with whom
she was residing. The aunt immediately terminated the lawyer's
representation of the young woman. Thereafter, the lawyer failed to
notify the young woman's parents that he had ceased representing her and
failed to take any further legal action on the parents' behalf.
The Board of Attorneys Professional Responsibility (BAPR) concluded
that in continuing to represent the young woman after he had become
aware that the representation was materially limited by his romantic
interest in her, the lawyer violated SCR 20:1.7(b), which provides that
a lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer's own interests unless
the lawyer reasonably believes the representation will not be adversely
affected and the client consents in writing after consultation. BAPR
further concluded that subsequent to his termination by the aunt, the
lawyer failed to take any action with regard to his representation of
the young woman's parents, contrary to SCR 20:1.3, which requires a
lawyer to act with reasonable diligence during a representation.
Finally, BAPR concluded that in failing to inform the young woman's
parents about his termination and explain their options to them, the
lawyer violated SCR 20:1.4(a), which requires a lawyer to keep a client
reasonably informed about the status of a matter, 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.
The respondent was privately reprimanded in 1997 for dissimilar
conduct.
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