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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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