Vol. 74, No. 6, June 2001

Lawyer Discipline

Disciplinary Proceeding Against Lauren R. Brown-Perry

During the course of an attorney disciplinary proceeding, the respondent in that proceeding, Lauren R. Brown-Perry, Madison, claimed a medical incapacity that made her defense of the disciplinary proceeding impossible. Pursuant to SCR 22.16(4), the assigned referee reported on the matter to the Wisconsin Supreme Court.

On April 12, 2001, the court suspended the underlying disciplinary proceeding until further notice from the court and ordered the suspension of Ms. Brown-Perry's Wisconsin law license, effective April 26, 2001, until a determination of her capacity to continue to practice law is made in a medical incapacity proceeding.

Disciplinary Proceeding Against Susan M. Cotten

On April 4, 2001, the Wisconsin Supreme Court ordered a six-month suspension of the law license of Susan M. Cotten, 49, Madison, effective May 8, 2001.

Cotten represented clients in three different matters. The first client hired Cotten as lead counsel to file a construction law suit and paid Cotten a $500 retainer and $182 filing fee. The client's previous attorney was to serve as cocounsel. Although the client left numerous messages with Cotten inquiring about the status of the case, Cotten did not return the calls, contrary to SCR 20:1.4(a), and Cotten failed to file suit on behalf of the client, contrary to SCR 20:1.3. Cotten wrote to the client and cocounsel to indicate she was terminating her representation and returning the filing fee. Cocounsel received the letter but the client did not. The client learned about the termination letter from cocounsel and made several requests to Cotten for an accounting and/or return of the file. Cocounsel eventually obtained the file from Cotten, and Cotten eventually returned the retainer fee.

In the second matter, a family hired Cotten to defend them in a lawsuit over an easement. Cotten filed an answer to the complaint, but she failed to appear at a telephone hearing, contrary to SCR 20:1.3. The court entered a default judgment awarding the plaintiff an ingress/egress easement over the clients' property. The clients, believing that Cotten had taken care of the matter, were unaware of the easement until a new owner purchased the property.

The clients subsequently hired Cotten to defend them in a foreclosure/replevin lawsuit and paid her a $600 retainer. Cotten filed an answer but never served it on plaintiff's counsel, contrary to SCR 20:1.3. The court issued foreclosure and replevin judgments in favor of the plaintiff in excess of $150,000. One of the clients made multiple attempts to contact Cotten to file a motion to vacate the judgments. Cotten did not initially return the calls, but eventually she told the clients she had taken care of everything, when, in fact, Cotten had failed to serve motions to have the judgments vacated, in violation of SCR 20:1.3 and 20:8.4(c). The clients hired successor counsel, who was successful in having the judgments vacated. The clients requested a return of their retainer, but Cotten failed to return it. The court also found that Cotten failed to keep the clients reasonably informed or respond to reasonable requests for information, contrary to SCR 20:1.4(a).

In the third matter, Cotten was hired to prepare wills for a couple, who executed the wills and paid Cotten $500. Cotten retained the wills and did not give the clients copies. The clients repeatedly requested copies of the wills, but Cotten failed to respond to their letters or telephone calls or to return the $500 payment she had received. During the investigation of the grievance, Cotten promised District Investigative Committee (DIC) investigators that she would provide the clients with copies of the wills, but she failed to do so. The court concluded that Cotten violated SCR 20:1.16(d), by failing, upon termination of representation, to take steps to the extent reasonably practicable to protect the interests of the first and third clients, including giving reasonable notice to the clients, surrendering papers and property to which the clients were entitled, and refunding any advance payment of fees that had not been earned.

In all of the matters, Cotten failed to respond to letters from staff of the Office of Lawyer Regulation (OLR) or provide requested documents to the DIC investigators, contrary to SCR 21.03(4) and 22.07(2) and (3). Cotten also failed to file any responsive pleading or participate in the disciplinary case in any manner.

The court further ordered that Cotten refund, within 60 days of the date of the order, with interest, the $600 retainer paid by the second clients in the foreclosure/replevin case and the $500 retainer paid by the third clients for her work in the execution of their wills.

Discplinary Proceeding Against David P. Diamon

On April 4, 2001, the Wisconsin Supreme Court ordered a five-month suspension of the law license of David P. Diamon, 43, Galt, Calif., and formerly of Madison, effective May 8, 2001.

Diamon represented clients in two different matters. The first involved a couple who hired Diamon for estate planning legal services and to create a limited liability company (LLC) on their behalf. The clients paid Diamon $1,400 for the work to be performed on the estate plan and $500 for creation of the LLC. For approximately four weeks after their initial meeting with Diamon, the clients unsuccessfully tried to contact him. The clients subsequently learned that Diamon had closed his Madison law office and moved to California. The clients wrote to Diamon and demanded return of their $1,900. Diamon never completed the legal work, nor did he refund the money they had paid him.

In the second matter, another couple hired Diamon in May 1998 to draft trust documents for the benefit of their minor children and paid Diamon a fee of $1,500. Although the clients attempted to contact Diamon in the summer and fall of 1998, he did not return their calls. The clients discovered that Diamon's telephone had been disconnected. Diamon never informed the clients that he had closed his law practice in Madison and relocated to California. Diamon never drafted the trust documents for the clients, nor did he refund their retainer.

An attorney assigned to investigate the matter by a district professional responsibility committee wrote to Diamon requesting additional information and that he contact her office to schedule a telephone conference. When Diamon requested additional time to respond, the committee investigator granted Diamon an extension and also asked him to provide a telephone number at which he could be reached, and available dates for a telephone conference. Diamon eventually provided a response to the committee investigator that failed to address some of the questions raised by the investigator. Diamon never provided a telephone number at which he could be reached for purposes of an interview.

The court concluded that by failing to seek additional information from the first clients that was required in order to conclude his legal work for them and by failing to do any work in developing the trust for the second clients, Diamon violated SCR 20:1.3. The court also concluded that by failing to communicate with his clients, by failing to notify them that he was closing his office and moving out of state, and by failing to provide his clients with a forwarding address, Diamon violated SCR 20:1.4(a). The court further concluded that by effectively terminating his representation of his clients without performing any services and by failing to refund the clients' retainer fees, Diamon violated SCR 20:1.16(d). Finally, the court found that by failing to respond to the committee's inquiries or to provide a means for being contacted by telephone for an interview, as requested, Diamon violated SCR 21.03(4).

The court also ordered that Diamon refund $1,900 and $1,500, plus interest, to the first clients and second clients, respectively, within 60 days from the date of the order. If Diamon failed to make payment within 60 days, his license would remain suspended until further order of the court.

Hearing to Reinstate Theodore F. Mazza

A hearing on the petition of Theodore F. Mazza, Milwaukee, to reinstate his law license will be held on July 20, 2001, at 10 a.m. before referee John Schweitzer in the Marshall Room at the offices of the Milwaukee Bar Association, 424 E. Wells St., Milwaukee. Any interested person may appear at the hearing and be heard in support of, or in opposition to, the petition for reinstatement.

Mazza's license was revoked by the Wisconsin Supreme Court, effective March 27, 1984. The revocation was based upon the following misconduct:

On March 16, 1982, Mazza was convicted of conspiracy to commit theft, party to a crime. This criminal conviction was based upon Mazza's participation in a scheme to unlawfully gain access to an individual's safety deposit box. The court determined that Mazza had engaged in illegal conduct involving moral turpitude, in violation of SCR 20:04(3) [currently SCR 20:8.4 (b)].

At the time of the revocation order, Mazza's law license already had been indefinitely suspended, with permission to petition for reinstatement after one year, pursuant to an order of the Wisconsin Supreme Court, effective March 7, 1978. That suspension was based upon the following misconduct:

The court found that Mazza had abused his attorney-client relationship by obtaining funds from a client for investment or loan purposes without disclosing his personal interest in the loans, by failing to ensure that valid security interests were obtained to protect the client's investment, by using funds obtained for investment purposes for personal business ventures, and by not repaying money when requested.

The court also found that Mazza repeatedly misused his trust account. In numerous instances, Mazza made disbursements for personal purposes from his trust account, used trust account funds for personal business purposes, deposited personal and business funds in his trust account, and failed to deposit monies received in trust in his trust account.

The court further found that Mazza neglected the work of his clients and failed to respond to their telephone calls.

Mazza is required by SCR 22.29 to establish by clear and convincing evidence, that:

1) he desires to have his license reinstated;

2) he has not practiced law during the suspension;

3) he has complied fully with the terms of the suspension and will continue to comply with them until his license is reinstated;

4) he has maintained competence and learning in the law;

5) his conduct since the suspension has been exemplary and above reproach;

6) he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards;

7) he can safely be recommended to the legal profession, the courts, and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the courts;

8) he has fully complied with the requirements set forth in SCR 22.26;

9) he has indicated the proposed use of his license, if reinstated;

10) he has fully described all business activities during the suspension; and

11) he has made restitution to or settled all claims of persons injured or harmed by his misconduct or, if not, has explained the failure or inability to do so.

Further information may be obtained from OLR investigator Timothy J. Pierce, 342 N. Water St., Suite 300, Milwaukee, WI 53202, (414) 227-4623, or OLR litigation counsel William J. Weigel, 110 E. Main St., Suite 315, Madison, WI 53703, (608) 267-7274, or toll free (877) 315-6941.

Public Reprimand of David P. Morzenti

David P. Morzenti, 53, of Hurley, Wis. and Marquette, Mich., has been publicly reprimanded.

In 1994, Morzenti undertook representation of a client regarding a worker's compensation hearing loss claim. When the client died almost two years later, Morzenti had not pursued the claim. After the client's death, Morzenti led the client's widow to believe that he would still pursue the claim on her behalf. Morzenti thereafter failed to respond to several inquiries from the widow, from the widow's daughters, and from an attorney acting on the widow's behalf, and he still did not take action to pursue the claim.

The widow filed a grievance against Morzenti in July 1999. In his written response to the grievance, Morzenti acknowledged that he had been neglectful in pursuing the hearing loss claim and that he had not adequately responded to the widow's inquiries. Morzenti indicated, however, that he still believed there was a viable basis to pursue the claim and that he still intended to pursue it on the widow's behalf.

When the Board of Attorneys Professional Responsibility (BAPR) considered this matter in May 2000, Morzenti had still not filed a claim. BAPR therefore voted to privately reprimand Morzenti on the condition that within 90 days he either pursue the claim or provide the widow with a written opinion that the claim has been extinguished. Morzenti failed to meet BAPR's condition. Although Morzenti represented that he had contacted potential witnesses and a potential medical expert within the allotted 90 days, he failed to provide any evidence of those contacts. As of November 2000, Morzenti had still not filed a claim or informed the widow that no viable claim exists.

The director of the OLR, successor to BAPR, therefore determined that Morzenti should be publicly reprimanded for failing to act with reasonable diligence and promptness in pursuing a client's hearing loss claim, contrary to SCR 20:1.3; for failing to keep his client reasonably informed and promptly comply with reasonable requests for information, contrary to SCR 20:1.4(a); and for failing to sufficiently explain the status and viability of the claim to the widow so that she can make informed decisions regarding the representation, contrary to SCR 20:1.4(b). Morzenti consented to the public reprimand, which was imposed by a court-appointed referee on March 14, 2001.

Hearing to Reinstate Leslie J. Webster

A hearing on the petition of Leslie J. Webster, Ellsworth, to reinstate his law license will be held on Monday and Tuesday, July 23-24, 2001, at 8 a.m. before referee Janet A. Jenkins in the Annex Room located downstairs at the Pierce County Courthouse, 414 W. Main St., Ellsworth. Any interested person may appear at the hearing and be heard in support of, or in opposition to, the petition for reinstatement.

Webster became licensed to practice law in 1979 and practiced in Ellsworth. His law license was suspended for two years effective Jan. 21, 1998 (Disciplinary Proceedings Against Webster, 217 Wis. 2d 371, 577 N.W.2d 21 (1998)). Prior to his suspension, Webster had been publicly reprimanded by the court (Disciplinary Proceedings Against Webster, 154 Wis. 2d 110, 452 N.W.2d 374 (1990)).

Webster's 1998 suspension was based on his conviction in federal court on one count of aiding and abetting the fraudulent concealment of a debtor's property from a bankruptcy trustee, a felony. The Wisconsin Supreme Court determined that Webster had committed a criminal act that reflected adversely on his honesty, trustworthiness, and fitness as a lawyer, contrary to SCR 20:8.4(b).

Webster is required by SCR 22.29 to establish by clear and convincing evidence, that:

1) he desires to have his license reinstated;

2) he has not practiced law during the suspension;

3) he has complied fully with the terms of the suspension and will continue to comply with them until his license is reinstated;

4) he has maintained competence and learning in the law;

5) his conduct since the suspension has been exemplary and above reproach;

6) he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards;

7) he can safely be recommended to the legal profession, the courts, and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court;

8) he has fully complied with the requirements set forth in SCR 22.26;

9) he has indicated the proposed use of his license, if reinstated;

10) he has fully described all business activities during the suspension; and

11) he has made restitution to or settled all claims of persons injured or harmed by his misconduct or, if not, has explained the failure or inability to do so.

Further information may be obtained from OLR Litigation Counsel William J. Weigel, 110 E. Main St., Suite 315, Madison, WI 53703, (608) 267-7274, or toll free, (877) 315-6941, or OLR's retained counsel in this matter, Frank M. Tuerkheimer, P.O. Box 2719, Madison, WI 53701-2719, (608) 257-3911.