Private Reprimand Summaries

The Wisconsin Supreme Court allows the Board of Attorneys Professional Responsibility (BAPR) to publish for educational purposes in an official State Bar publication a summary of facts and professional conduct rule violations in matters in which BAPR has imposed private reprimands. The summaries do not disclose information identifying the reprimanded attorneys.

The following summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems. Some of the summaries indicate violations of the rules that were in effect prior to Jan. 1, 1988. The current rules proscribe the same types of misconduct.

Criminal conduct

Violation of SCR 20:8.4(b)

On Oct. 30, 1996, an attorney pleaded no contest to a misdemeanor charge of sharing a prescription medication with another individual, in violation of section 450.11(7)(h) of the Wisconsin Statutes. Based on the conviction, the Board of Attorneys Professional Responsibility (BAPR) found that the attorney engaged in criminal conduct that reflected adversely on the attorney's trustworthiness and fitness as a lawyer, contrary to the requirements of SCR 20:8.4(b). The attorney had no prior disciplinary history.

Improper disbursement of trust account funds

Violation of SCR 20:1.15(b)

In 1991 the attorney represented landlords in drafting agreements under which they sold cows and leased a farm and equipment to three tenants. In 1992 the attorney agreed to represent two of the tenants, A and B, in a disagreement with the third tenant, C. The representation of A and B ended by December 1992.

In the spring of 1993, the three tenants decided to quit farming and hold an auction to sell their cows and equipment. The parties reached a termination agreement that was drafted by the attorney, although he was not involved in negotiating the terms. The parties disagreed on the intent and interpretation of the termination agreement. The tenants believed the agreement released them from all claims except the amount due on a note to the landlords. The landlords believed the agreement released the tenants only from a liquidated damages clause in a lease and not from other claims for damages.

At the attorney's request, the auction clerk sent the proceeds of the tenants' auction to the attorney, and the funds were deposited into his trust account. The attorney disbursed part of the proceeds to the landlords in payment of the balance due on a note from the tenants with the agreement of all sides. The parties disagreed on how the balance of the auction proceeds should be disbursed. The tenants believed that the balance should be paid to them, but the landlords believed they were entitled to the balance because of alleged damages they had suffered to the farm. The tenants informed the attorney that they disputed the damages alleged by the landlords.

The attorney subsequently disbursed a part of the remaining proceeds to one of the tenants, C. The attorney then disbursed the remaining balance in the trust account to the landlords without the knowledge or consent of the other two tenants, A and B. BAPR found that the attorney violated SCR 20:1.15(b) by disbursing the balance in the trust account to his clients, without the knowledge and consent of two of the former tenants, when the attorney had notice that the former tenants disputed the landlords' claims to the balance in the trust account.

Estate neglect and lack of communication

Violations of SCR 20:1.3 and 20:1.4(a)

In July 1994 an attorney was retained to probate an estate. In September 1994 the same client hired the attorney to probate another estate. In violation of SCR 20:1.3, which requires an attorney to act with reasonable diligence and promptness in representing a client, the attorney failed to initiate probate in either matter as of Summer 1996, when arrangements were made for the transfer of the cases to other counsel. The attorney also did not communicate with the client from at least September 1994 to September 1995, during which time his office received telephone inquiries from the client, in violation of SCR 20:1.4(a), which states, "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

Failure to act diligently, failure to communicate with the client and
improper termination of services

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

In September 1993 an attorney was retained to represent a client in a small claims action against a landlord. Following a hearing in June 1994, a judgment, plus attorney fees, was issued against the landlord. Subsequently, the landlord, through counsel, requested a trial de novo on the issue of attorney fees. Although the court judgment was later affirmed by the circuit court and the landlord's motion for reconsideration was denied in December 1995, the attorney took no action to execute upon the judgment. Meanwhile, the attorney decided to leave the practice of law and had the office telephone disconnected. Effective June 4, 1996, the attorney was administratively suspended from the practice of law for failure to comply with mandatory continuing legal education requirements.

BAPR found that in failing to file a Notice of Entry of Judgment or failing to take any steps after December 1995, prior to the attorney's administrative suspension in June 1996, to satisfy the judgment obtained on behalf of the client, the attorney failed to act with reasonable diligence and promptness in representing the client, contrary to SCR 20:1.3. BAPR also found that by disconnecting the office telephone and failing to notify the client of a means to contact the attorney until well after the grievance was filed, despite the client's repeated attempts to reach the attorney, the attorney violated SCR 20:1.4(a). BAPR further found that by abandoning the client without taking any steps to ensure that the client's interests were protected, and without withdrawing following the attorney's decision to discontinue practicing law and the attorney's administrative suspension, the attorney violated SCR 20:1.16(d).

The private reprimand was conditioned upon the attorney notifying in writing any clients not previously notified of the attorney's duty to withdraw from any further representation. The attorney met that condition and accepted the private reprimand. The attorney had no prior disciplinary history.

Failure to cooperate with BAPR investigation

Violation of SCR 21.03(4) and 22.07(3)

A client filed a grievance against a lawyer. After submitting an initial response that provided some information about the client's case, the lawyer failed over 13 months to answer fully a request from BAPR for additional information. BAPR determined that the lawyer failed to cooperate with the grievance investigation, contrary to SCR 21.03(4) and SCR 22.07(3). The lawyer had no prior discipline.

Practice during CLE suspension

Violations of SCR 10.03(4) and 31.10(1)

Subsequent to the administrative suspension of his license for failing to comply with mandatory continuing legal education (CLE) requirements, an attorney acted on behalf of a legal entity, which activities included providing instruction regarding formation of the entity, providing advice regarding the pursuit of litigation both civil and criminal, corresponding and otherwise communicating with representatives of an adverse party to request settlement negotiations, identified himself as an attorney in correspondence and in conversation with representatives of the adverse party, and used stationery and an envelope for a law office bearing his name in corresponding with the adverse party's representatives.

BAPR concluded that the suspended attorney engaged in the practice of law and purported to be authorized to do so, in violation of SCR 10.03(4), which states that only active members of the Bar may practice law, and SCR 31.10(1), which prohibits the practice of law by attorneys suspended for failing to comply with mandatory CLE. SCR 10.03(4) and 31.10(1) are enforceable under the Rules of Professional Conduct through SCR 20:8.4(f).

Misrepresentation, neglect and failure to communicate in a personal injury matter

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

A client retained an attorney to handle a personal injury claim related to injuries received in an automobile accident. About two and a half years later, the attorney informed the client that the statute of limitations would soon expire and requested that the client give money for filing fees. Shortly thereafter, about one week before the statute of limitations had run, the client met with the attorney, gave the attorney $100 cash and received a receipt. However, the attorney did not file the complaint and the statute of limitations expired. About three weeks later, the client made another payment of $30 for costs. The attorney did not inform the client that the statute of limitations had expired until the client later confronted him. At that time, the attorney denied that the client had paid the $100.

BAPR found the attorney violated SCR 20:1.3 by failing to file the complaint when the attorney knew the statute of limitations would soon expire. The attorney also had violated SCR 20:1.4(a) by failing to inform the client that the statute of limitations had expired. BAPR also found that the attorney had violated SCR 20:8.4(c) by making repeated misrepresentations about receiving the $100 payment from the client. The attorney had no prior discipline.

Neglect, failure to communicate, failure to return an unearned fee, disobeying
an obligation under the rules of a tribunal

Violations of SCR 20:1.3, 20:1.4(a), 20:1.16(d)
and 20:3.4(c)

An attorney represented a client regarding an appeal in a criminal matter on appointment by the State Public Defender's Office. The attorney failed to timely file a brief and to respond to orders from the court of appeals relating to his failure to file the brief. As a result of the attorney's failure to file a brief, his client's appeal was dismissed. BAPR found the attorney's conduct violated SCR 20:1.3. BAPR also found the attorney's failure to comply with various orders issued by the court of appeals constituted disobeying an obligation under the rules of a tribunal, in violation of SCR 20:3.4(c).

In another matter the attorney represented a client in an effort to reduce or modify her probation. The attorney failed to take any action regarding the probation matter for approximately seven months after being paid a flat fee of $2,000. BAPR found that the attorney thereby violated SCR 20:1.3. BAPR also found the attorney's failure to respond to numerous client telephone calls over five months violated SCR 20:1.4(a). When BAPR considered these matters, the attorney had not returned any unearned portion of the fee. Therefore, BAPR found that he violated SCR 20:1.16(d), and conditioned the private reprimand on the return of the entire fee to the client. The attorney had no prior discipline.

Neglect

Violation of SCR 20:1.3

An attorney represented the ex-wife in a post-judgment child support matter. The ex-husband requested a hearing on several issues. At the hearing in January 1993 the parties reached an agreement regarding the issues raised by the ex-husband. The ex-wife's attorney accepted responsibility for drafting an order reflecting the settlement. However, the attorney never drafted the order, despite her promise to do so and repeated requests from the ex-husband and his counsel that she do so. When problems with the income assignment arose three years later, there was no signed order or court record to substantiate either party's recollection of the outcome of the 1993 proceeding. The ex-husband filed a grievance and BAPR determined that the attorney's conduct constituted neglect of a client matter, in violation of SCR 20:1.3. The attorney had a prior private reprimand for neglect and failure to communicate.

Neglect of tax matter, conflict of interest

Violations of SCR 20:1.3 and 20:1.7(a)(2)

In 1991 an attorney was retained by a church to file a 501(c)(3) application for recognition of exemption from federal income tax. Between approximately 1992 and 1996, the attorney did not pursue this matter. In late June 1996 the attorney filed the application, which was granted the following October. BAPR found that, by failing to pursue the application process for approximately four years, the attorney failed to act with reasonable diligence and promptness, contrary to SCR 20:1.3.

In a separate matter the attorney represented a man regarding insurance claims resulting from fire loss. During this same time period, the attorney also acted as personal representative for two estates. On behalf of the estates, the attorney sold the man properties owned by each estate. (The man eventually defaulted on his mortgage payments to the estates, and the attorney sued the man on behalf of the estates.) The attorney did not discuss potential conflicts of interest with the man before selling him the properties and did not obtain the man's consent in writing. BAPR found that the attorney's failure to discuss potential conflicts of interest and to obtain a written waiver constituted a violation of SCR 20:1.7(a)(2). In mitigation, the attorney had been practicing law for 44 years with no prior discipline.

Neglect of federal criminal appeal,
failure to cooperate

Violations of SCR 20:1.3, 21.03(4) and 22.07(2)

An attorney represented a man regarding federal drug charges. The client pled guilty. The attorney, who was previously disbarred from the Seventh Circuit, provided the client with a "form" notice of appeal which the client filed pro se. On April 4, 1996, the Seventh Circuit Court of Appeals issued an order reminding the attorney of his obligation under Rule 4 to continue to represent a defendant on appeal unless specifically relieved by the court after a motion to withdraw. The order also instructed counsel to comply with the rule regarding preparation of transcripts. The attorney failed to respond. On April 12, 1996, the court sent a Rule to Show Cause (RTSC) ordering the attorney to file the overdue docketing statement. On May 15, 1996, the court sent the attorney another RTSC ordering him to file the overdue docketing statement. On May 29, 1996, the attorney filed the docketing statement. On Aug. 21, 1996, the client filed a pro se motion to dismiss the attorney as appellate counsel. On Aug. 28, 1996, the court ordered the attorney to respond to the client's motion. The attorney failed to respond. The court subsequently appointed new counsel to represent the client.

BAPR found that the attorney failed to act with reasonable diligence and promptness, contrary to SCR 20:1.3. BAPR believed the attorney should have responded to the court orders and continued to represent the client until he specifically moved the court for withdrawal. The attorney also failed to cooperate with BAPR's investigation of this grievance and with two other grievances, contrary to SCR 21.03(4) and 22.07(2). The attorney had previously been privately reprimanded.

Failure to communicate, lack of diligence, conflict of interest and failure to put
a contingent fee in writing

Violations of SCR 20:1.4(a), 20:1.3, 20:1.8(h) and 20:1.5(c)

An attorney inadvertently failed to file a Social Security disability claim on behalf of a client. Whenever the client called to inquire about the status of her claim, the calls were screened by the attorney's secretary, who misinformed the client that they were still waiting for Social Security to schedule a hearing. Twenty-two months later, when the client finally discovered that the claim had never been filed, she filed the claim pro se, but lost at least six months of benefits because of the filing delay. She then demanded compensation from the lawyer, who offered to pay only half the amount demanded. The lawyer thereafter failed to respond to further inquiries and demands from the client, but did send the client a partial payment without explanation. The lawyer never advised the client that independent representation with regard to her malpractice claim was appropriate. The client subsequently retained an attorney and eventually accepted the attorney's original settlement offer. There also was a dispute as to how the attorney's fees were to be charged. The client asserted that the attorney had intended to charge a one-third contingency fee, and the attorney asserted that he intended to charge an hourly fee, but only if the claim was successful. There was no written fee agreement.

BAPR concluded that the attorney had violated SCR 20:1.4(a) by failing to provide accurate information when the client called his office to inquire about the status of her case, violated SCR 20:1.3 by failing to follow through when Social Security took no action on a claim the attorney thought had been filed, violated SCR 20:1.8(h) by making an agreement or settling a malpractice claim without first advising the client in writing that independent representation was appropriate; and violated SCR 20:1.5(c) by failing to put a contingent fee agreement in writing.

In a second matter the attorney had represented a client in a bankruptcy action. When the client tried to refinance a home mortgage, she discovered there were outstanding liens that should have been satisfied by the bankruptcy. The client alleged that the attorney thereafter failed to respond to 15 telephone calls from her and her lender before filing the necessary satisfactions, causing her to lose a favorable interest rate on her mortgage. BAPR found there was a violation of SCR 20:1.4(a). The attorney previously had been publicly reprimanded for unrelated misconduct.

Failure to promptly return unearned fees

Violations of SCR 20:1.15(a) and (b)

A lawyer received a $20,000 advance payment of fees from a client. The lawyer failed to deposit the money in a trust account and failed to hold the funds until the fees were earned. When the client died during the course of the representation, the lawyer did not promptly pay the unearned portion of the fees to the client's estate.

BAPR found that the lawyer's failure to deposit the advance into a trust account violated SCR 20:1.15(a), which requires a lawyer to hold all client funds in a trust account. BAPR also found that the lawyer's failure to promptly return unearned fees to the client's estate violated SCR 20:1.15(b), which requires a lawyer to promptly deliver client property upon request.

Conflict of interest

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

An attorney represented a partnership in selling land to a developer. Allegedly unbeknownst to the partnership, prior to the closing the attorney also undertook representation of the developer. Shortly before or at the time of closing, the developer informed the partnership that, contrary to the purchase agreement, it could pay only half the purchase price in cash and the balance would have to be paid with a second mortgage and promissory note. The developer subsequently failed to make scheduled payments on the promissory note, but the attorney nevertheless prepared and had the partnership sign a release of its second mortgage so the developer could obtain new financing.

Even though the attorney undertook representation of the developer in numerous other matters over the next few years, he continued to represent the partnership in its unsuccessful attempts to collect its receivable from the developer. The partnership asserts that the attorney never advised them that he also represented the developer. The attorney asserted that the partnership did know about the representation, but acknowledged he had never obtained written consent. Eventually, the partnership obtained a new attorney who was successful in obtaining full restitution for the partnership, including a payment from the attorney's malpractice carrier.

BAPR found that the attorney had violated SCR 20:1.7(a) by representing a client when representing that client was directly adverse to another client without first obtaining each client's written consent. The attorney also violated SCR 20:1.7(b) by representing a client when representing that client may have been materially limited by the lawyer's responsibilities to another client without each client's written consent. The attorney had no prior disciplinary record.

Failure to notify third party of receipt of funds, failure to hold disputed funds in trust and
false statement of fact to a tribunal

Violations of SCR 20:1.15(b) and (d); 20:3.3(a)(1)

In 1991 a client retained an attorney regarding a worker's compensation claim. In 1993 the attorney negotiated a $50,000 settlement with the insurance carrier, which the client rejected. The client subsequently terminated the attorney and retained another attorney, X. The first attorney advised X's firm and the insurance carrier of his attorney's lien on the settlement proceeds. X's firm informed the first attorney that he, the first attorney, was not entitled to any attorney fees. The first attorney reasserted his lien. In 1995 the first attorney learned that the case had settled in March 1994. X did not advise the first attorney that the case had settled. No funds were disbursed to the first attorney and no funds were held in trust pending resolution of the fee dispute. Additionally, when the case settled, X misrepresented to the administrative law judge (ALJ) that he and the first attorney had "worked out" their dispute and that no language regarding the fee issue was needed in the ALJ's order.

BAPR found that, by failing to advise the first attorney upon receipt of the settlement proceeds and failing to hold the disputed portion of those funds in trust, X violated SCR 20:1.15(b) and (d). BAPR also found that, by misrepresenting to the ALJ that he and the first attorney had worked out their fee dispute, X knowingly made a false statement of fact to a tribunal, in violation of SCR 20:3.3(a)(1). In determining the appropriate sanction, BAPR also considered that the attorney expressed sincere remorse for his conduct and had no prior disciplinary history. Additionally, the fee dispute ultimately was resolved by the Worker's Compensation Division, which found that the first attorney was not entitled to any fees.

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