Lawyer Discipline

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.

Disciplinary Proceedings

Lack of Diligence, Failure to Communicate in Criminal Appeal

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

In late November 1995, the State Public Defender's Office appointed an attorney to represent a man regarding the appeal of a first degree intentional homicide conviction. For more than 36 months the attorney failed to meet or communicate in any way with the client, failed to contact trial counsel, failed to obtain police reports in the case, and failed to determine whether there was a basis to appeal or seek postconviction relief. The attorney thereby failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. The attorney also failed to respond to seven written inquiries from the client regarding the status of his case, thereby failing to keep a client reasonably informed about the status of a matter and promptly complying with reasonable requests for information, in violation of SCR 20:1.4(a).

The misconduct was mitigated by the fact that the attorney had no prior discipline, and the matter appeared to be an isolated instance of misconduct. In addition, there did not appear to be a meritorious basis upon which to appeal or seek postconviction relief; therefore, the harm was limited to the frustrations caused by unreasonable delay. The misconduct was aggravated by the fact that the lack of diligence continued for a long time, despite repeated requests from the client for status information.

Neglect, Failure to Communicate

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

From Aug. 19, 1995 to Sept. 28, 1995, a man was held in custody on a probation hold that previously had been stayed. Shortly thereafter, the man retained an attorney to represent him regarding a false imprisonment claim. In October 1995 the attorney filed a notice of claim with the Office of the Attorney General. In January 1996 the attorney advised the man that the attorney general denied the claim, necessitating the filing of a lawsuit. The attorney drafted a complaint but never filed it. While the man believed that a lawsuit was pending and was periodically checking on the progress of the case, the attorney failed to diligently pursue the matter, in violation of SCR 20:1.3. The attorney also violated SCR 20:1.4(a) by failing to keep the man apprised of the status of the matter and failing to inform him that a lawsuit, in fact, had not been filed.

The attorney had no prior discipline.

Neglect and Improper Termination

Violations of SCR 20:1.3 and 20:1.16(d)

A client was slightly injured in an automobile accident in Illinois. The client originally retained a Wisconsin law firm, but the firm subsequently referred the matter to an attorney who was licensed to practice law in both Wisconsin and Illinois. That attorney prepared and filed a complaint in Illinois, but the summons and complaint were never served on the defendants. A year after the complaint was filed, the court issued a notice stating that there appeared to be no service and that if counsel failed to appear at a status call, the case would be dismissed. The attorney did not notify the client nor appear, and the case was dismissed. The attorney then referred the case back to the Wisconsin firm "for consideration of how best to advise the client."

BAPR found that the attorney's failure to pursue the client's case constituted a failure to act with reasonable promptness and diligence, contrary to SCR 20:1.3. BAPR also concluded that the attorney's termination of the representation without taking steps to the extent reasonably practicable to protect the client's interests was a violation of SCR 20:1.16(d). The attorney had not been previously disciplined.

Failure to Hold Money in Trust, Act with Reasonable Diligence and Promptness, and Keep a Client Reasonably Informed

Violations of SCR 20:1.3, 20:1.4(a), and 20:1.15(d)

In one matter during 1994, an attorney drafted a will for a client and assisted the client with estate planning advice and services. Due to the client's failing health, the attorney requested that the client give him $7,000 prior to the client's death in order to fund bequests to the client's second wife and to a church. The client gave the attorney a $7,000 check, and the funds were deposited into the attorney's trust account. The attorney then withdrew $150 in fees from funds on deposit for the client's estate without notifying the client or his son. Shortly thereafter, the client died. The attorney again withdrew $850 in fees out of the estate funds on deposit in his trust account without obtaining consent to the withdrawal from the deceased client's son.

BAPR determined that in paying his fees from the funds held in trust for the estate, without the client's son's permission, the attorney violated SCR 20:1.15(d).

With regard to the second matter, on or about April 12, 1995, a collection agency retained the attorney to attempt to collect a debt owed by one of its clients. Between June and November 1995, the collection agency sent the attorney several letters and made a telephone call to his office inquiring as to the status of its case. After the attorney failed to respond, the collection agency terminated the attorney's services.

BAPR concluded that in failing over nine months to collect a debt on behalf of the collection agency, the attorney failed to act with reasonable diligence and promptness in representing a client, contrary to SCR 20:1.3. BAPR also determined that in failing to respond to the collection agency's inquiries regarding the status of its case and in failing to inform the agency in the fall of 1995 that its account might be uncollectible, the attorney failed to keep a client reasonably informed about the status of a matter and failed to promptly comply with reasonable requests for information, contrary to SCR 20:1.4(a).

The attorney had no prior discipline.

Failure to Abide by Client's Decision

Violation of SCR 20:1.2(a)

An attorney represented the mother in a paternity proceeding. Although agreement was reached between the parties on several issues, there remained disputes over the periods of placement for the child and the amount of child support the father would pay, and the matter was set for trial on Dec. 15, 1997. The parties met to try to reach an agreement, and opposing counsel drafted a proposed stipulation, which was circulated among the parties on Dec. 13, 1997. On Dec. 14, 1997, the attorney signed the stipulation, clearly indicating that she was signing on her client's behalf, and faxed it back to opposing counsel. While the attorney believed that she had implied authorization from her client to sign the stipulation, the attorney did not have the client's express authorization to do so. About three weeks later, the attorney mailed a copy of the stipulation to her client. The client later retained new counsel and argued in court against some of the terms of the stipulation that the attorney signed on her behalf. BAPR found that the attorney violated SCR 20:1.2(a) by failing to obtain the client's express consent before signing the stipulation. The attorney had been privately reprimanded twice previously.

Communication with Person Represented by Counsel

Violation of SCR 20:4.2

In the fall of 1997 criminal charges were filed against three individuals for their alleged roles in a burglary. One of the individuals, a woman, retained private counsel. A settlement conference between the woman's counsel and the district attorney was held, but settlement negotiations were unsuccessful and the case proceeded.

During early 1998 the district attorney subpoenaed the woman to give testimony at the preliminary hearing scheduled for later in the month involving one of the codefendants. The subpoena was served directly on the woman, and the district attorney did not notify the woman's counsel regarding the service of the subpoena on his client.

At the preliminary hearing, unbeknownst to the woman's counsel, the district attorney examined the woman under oath regarding various aspects of the burglary. At the time of the hearing, the woman was still represented by counsel and her own criminal matter was still pending.

BAPR concluded that in failing to notify the woman's counsel of his intent to question the woman on direct examination at the preliminary hearing in a related matter, and in questioning the woman at the hearing without the woman's counsel being present, the attorney violated SCR 20:4.2, which provides that "[I]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

The attorney had no prior disciplinary history.

Failure to Comply with Information Requests and Refund Unearned Fee

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

In December 1996 a man retained and paid an attorney a flat fee of $5,000 to represent him regarding the appeal of a drug conviction. The man also wanted the attorney to seek his release on bond, pending the outcome of the appeal. The attorney never filed a motion for the man's release on bond, and failed to respond to four letters from him requesting information about the status of the case. Between December 1996 and April 1997, the attorney attempted to determine how to best approach the appeal. However, in late March 1997 the client terminated the attorney's services, requested that the file be turned over to new counsel, and asked for a full refund. At that point, the attorney had not yet determined what to do.

Although the file was promptly turned over to successor counsel, the attorney contended that 50 to 80 hours had been spent on the case, and that the client therefore was not entitled to a refund. Despite the alleged number of hours, no substantive pleadings had been filed, and no usable work product had been produced. The attorney's failure to respond to four letters from the client constitutes a failure to promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a), and the failure to refund the unearned portion of the retainer fee violates SCR 20:1.16(d). The misconduct was mitigated by the attorney's lack of prior discipline and the existence of some serious personal problems at the time of the misconduct.

In addition to the reprimand, BAPR required the attorney to seek fee arbitration and to pay all of the associated costs. While arbitration was initiated and the costs paid as required, the matter ultimately was resolved by an agreement whereby the attorney refunded $1,500 of the $5,000 fee to the client.

Sexual Relations with Client

Violation of SCR 20:1.8(k)(2)

An attorney represented a woman in a divorce. Approximately 10 days before the final hearing, the attorney and the woman engaged in one incident of consensual sexual relations. They did not see each other again until the day of the final hearing. Following the hearing, the attorney gave the woman a letter stating that he was terminating the legal representation and that the attorney was passing the file to his partner with the intention that the attorney and the woman would begin a social relationship. For the next three months, the attorney and the woman engaged in a consensual sexual relationship while the attorney's partner signed all correspondence in the woman's case. The attorney and the woman subsequently ended the sexual relationship, and the attorney resumed the woman's legal representation in post-judgment issues.

BAPR concluded that the attorney violated SCR 20:1.8(k)(2) by engaging in sexual relations with the client prior to the trial, when the attorney and the client did not have a sexual relationship prior to the establishment of their attorney-client relationship. The attorney had no prior disciplinary history.

Conflict of Interest

Violations of SCR 20:1.7(b) and 20:1.9(a)

An attorney negotiated a divorce settlement for a client under the terms of which the client's spouse was to be responsible for the payment of a certain debt to Creditor A. The spouse, however, failed to pay that bill.

The attorney subsequently represented Creditor A in a collection action against both his former client and her former spouse. The attorney consulted with neither his former client nor Creditor A prior to undertaking the collection, and the attorney obtained written consent to the representation from neither.

BAPR determined that the attorney's representation of Creditor A in seeking to collect payment against his former client was substantially related to his former representation of that client in the divorce in which responsibility for Creditor A's bill had been assigned solely to the client's former spouse. BAPR concluded that in undertaking the representation of Creditor A without obtaining the former client's written consent after consultation, the attorney violated SCR 20:1.9(a), which proscribes representation of a person in a substantially related matter in which that person's interests are materially adverse to the interests of a former client, unless the former client gives written consent after consultation.

BAPR further concluded that by failing to disclose to Creditor A his former representation of one of the debtors and in failing to obtain Creditor A's written consent to the representation, the attorney violated SCR 20:1.7(b), which proscribes representation of a client where the representation may be materially limited by the lawyer's responsibilities to another client or a third person, unless the lawyer obtains written consent after consultation. The attorney had previously received both a private and a public reprimand.

Failure to Safeguard and Promptly Return Property

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

An attorney represented a woman's fiancé regarding state drug charges. In June 1998 the attorney was given possession of a 1986 Cadillac on behalf of the client. He was to try to get an estimate on the car so that the client could sell it, if necessary, to pay the attorney's legal fee. The attorney drove the car to his girlfriend's house in the Madison area where it broke down. From late June until the filing of her grievance in September, the woman attempted to contact the attorney regarding the return of the vehicle. The attorney did not have the car returned to Milwaukee until Sept. 18, 1998, and did not inform the woman or the client that it was at a Milwaukee garage until Oct. 18, 1998. The woman then paid to have the car towed from the garage to her home. Additionally, the attorney received a parking ticket on the car that he did not pay until after the matter was referred to the District Professional Responsibility Committee, at the committee investigator's prompting. BAPR found that by taking and leaving the car in the Madison area and failing to return the car for more than four months, the attorney failed to safeguard the vehicle and timely return the vehicle on request, in violation of SCR 20:1.15(a) and (b). While the misconduct was relatively minor in nature, the attorney had three prior private reprimands.

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