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  • Wisconsin Lawyer
    March
    01
    2013

    Lawyer Discipline

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    These summaries are provided by the Office of Lawyer Regulation (OLR), an agency of the Wisconsin Supreme Court. The OLR assists the court in supervising the practice of law and protecting the public from misconduct by lawyers. The OLR has offices at 110 E. Main St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941. The full text of items summarized is at www.wicourts.gov/olr.

    Disciplinary proceeding against Nikola P. Kostich

    The Wisconsin Supreme Court suspended the law license of Nikola P. Kostich for 60 days, effective Jan. 1, 2013. In addition, the court ordered Kostich to pay the cost of the disciplinary proceeding, $6,803.81. Disciplinary Proceedings Against Kostich, 2012 WI 118.

    The suspension is based on Kostich’s misconduct while representing a woman on federal drug charges. In violation of SCR 20:1.4(a)(3) and (4), Kostich failed to communicate with the client over a four-month period during which the client was attempting to reach him. Kostich failed to respond to a letter and emails from the client and her mother concerning fees, in violation of SCR 1.5(b)(3). Finally, in violation of SCR 20:1.16(a)(3), Kostich failed to take timely steps to withdraw from the representation after receiving numerous communications from the client and her mother discharging him.

    Kostich has three prior public reprimands, imposed in 1986, 2005, and 2010. In handing down the 60-day suspension of Kostich’s license, the court noted its adherence to a system of progressive discipline, as well as that Kostich’s 2005 public reprimand was for somewhat similar misconduct.

    Disciplinary proceeding against Vladimir M. Gorokhovsky

    On Nov. 30, 2012, the supreme court publicly reprimanded Vladimir M. Gorokhovsky, Glendale. The court ordered Gorokhovsky to pay the disciplinary action’s full cost, $14,396.78. Disciplinary Proceedings Against Gorokhovsky, 2012 WI 120.

    Gorokhovsky provided postconviction representation to a client in a criminal matter. Gorokhovsky violated SCR 20:1.1 by advising the client that the client’s chosen litigation strategy would be unlikely to succeed, despite never having spoken to the client, reviewed the trial transcripts, or reviewed an important piece of trial evidence. Gorokhovsky filed a postconviction motion for sentence modification without any input from the client, contrary to SCR 20:1.2(a). In violation of former SCR 20:1.4(a) and current SCR 20:1.4(a)(3), Gorokhovsky failed to keep the client informed as to case status.

    Gorokhovsky accepted compensation for legal services from someone other than the client without the client’s prior consent, in violation of former SCR 20:1.8(f)(1), and did so in a manner that interfered with his independent professional judgment and with the lawyer-client relationship, in violation of SCR 20:1.8(f)(2). Gorokhovsky violated SCR 20:1.8(f)(3) and former and current SCR 20:1.6(a) by discussing the client’s case with the party paying for Gorokhovsky’s services without the client’s consent and by allowing that party to make decisions about the representation on the client’s behalf.

    Gorokhovsky violated SCR 20:8.4(c) and SCR 22.03(6) by falsely dating a letter to the client (information in the letter established that it could not have been written until at least 13 days later) and by submitting a copy of the back-dated letter to the Office of Lawyer Regulation (OLR) during its investigation. Gorokhovsky charged an unreasonable fee, in violation of SCR 20:1.5(a), by charging more than $8,000 in fees to pursue a postconviction motion not authorized by the client, including more than $1,800 in fees for services engaged in before communicating with the client in any way; by submitting various duplicative and excessive charges; and by charging approximately $400 for time and effort spent pursuing payment of the overall fee.

    Gorokhovsky received a private reprimand in 2009.

    Disciplinary proceeding against Evan M. Read

    On Dec. 4, 2012, the supreme court publicly reprimanded Evan M. Read, Milwaukee, and ordered him to pay the full cost of the disciplinary proceeding. Disciplinary Proceedings Against Read, 2012 WI 121. The misconduct occurred during Read’s representation of a prison inmate (the client) concerning the client’s bail-jumping conviction. Only a few months after admission to the bar, Read had accepted an appointment from the State Public Defender (SPD) to seek postconviction relief or an appeal on the client’s behalf.

    Read did not contact the client or respond to his letters and did nothing to establish telephone communications with him. Nine months after Read’s appointment, the client sought the SPD’s help in getting Read to contact him. Read did not respond to letters from the SPD.

    A year after Read’s appointment, and still without any word from Read, the client filed a grievance with the OLR. Read responded by sending the OLR a copy of a letter he had just written to the client, apologizing for his inattentiveness and claiming he had not known how to locate the client in the prison system. Read also wrote that he was waiting for transcripts from the case.

    Read’s subsequent communications with the client and the SPD were sporadic. The December 2008 deadline for filing either a notice of appeal or a postconviction relief motion expired without action by Read. With no indication that Read was acting in furtherance of the client’s interests, the SPD notified Read in October 2009 that a new attorney was being appointed and asked Read to provide the entire client case file to the SPD. He never did so.

    The SPD managing attorney overseeing the matter then filed a grievance with the OLR. Read failed to respond to OLR inquiries, which began in December 2009.

    Read’s failure to take any steps to perfect an appeal, move for postconviction relief, or otherwise address the client’s matter violated SCR 20:1.3. By failing to communicate with the client for more than one year, and thereafter communicating only sporadically and inadequately, Read violated SCR 20:1.4(a)(3). His failure to respond promptly to repeated requests for information on the status of the client’s matter violated SCR 20:1.4(a)(4). Read’s failure to acquire and use the requisite knowledge to find a client in the Wisconsin prison system violated SCR 20:1.1. His failure to provide the case file to the client or to successor counsel after his representation was terminated violated SCR 20:1.16(d). By failing to provide a written response to the OLR within 20 days after Dec. 3, 2009, and by willfully failing to cooperate with the OLR investigation, Read violated SCR 20:8.4(h) and SCR 22.03(2) and (6).

    Read has no prior discipline.

    Disciplinary proceeding against Matthew C. Siderits

    On Jan. 4, 2013, the supreme court suspended the law license of Matthew C. Siderits, Waukesha, for one year, effective Feb. 4, 2013. The court also assessed the full cost of the disciplinary proceeding against Siderits. Disciplinary Proceedings Against Siderits, 2013 WI 2.

    Siderits was a shareholder in and the treasurer for a Milwaukee law firm. The firm’s compensation system provided for a year-end bonus if the shareholder billed in excess of 1,800 hours for the year. In 2007 and 2008, Siderits recorded billable hours of more than 1,800 hours, earning a $23,451.12 bonus in early 2008 for his 2007 billings, and a $23,526.92 bonus in early 2009 for his 2008 billings.

    After the firm paid Siderits the bonuses, but before Siderits sent end-of-year bills to his clients, Siderits “wrote down” certain of his client’s bills, dropping his 2007 and 2008 billings below the 1,800 billable-hour threshold. Siderits made his billing changes directly into the firm’s accounting system and did not inform his partners or administrative staff of his actions. In 2007, Siderits wrote down sufficient time to drop his billable hours to just below the 1,800 billable-hour level. However, in 2008, Siderits wrote down more than 230 billable hours, causing his 2008 billable hours to drop below 1,600 hours. In one worker’s compensation case, Siderits billed 140 hours – and then wrote down 105.7 hours - for a 17-page brief taken largely from the memorandum of an associate, who billed separately.

    Siderits ultimately repaid the bonuses and unspecified damages to the firm and forfeited his interest in the firm’s profit-sharing plan. The court found that Siderits misrepresented his billable hours for 2007 and 2008, made changes to the firm’s accounting system and deleted billable time without advising firm members, and failed to disclose to the firm that his write-downs rendered him ineligible for bonuses, all conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c). In addition, the court found that Siderits breached his fiduciary duty to his firm in violation of SCR 20:8.4(f), which states that, “It is professional misconduct for a lawyer to: … (f) violate a … supreme court decision … regulating the conduct of lawyers …” as it relates to Disciplinary Proceedings Against Shea, 190 Wis. 2d 560, 527 N.W.2d 314 (1995).

    Siderits had no prior discipline.

    Disciplinary proceeding against Naomi E. Soldon

    On Dec. 7, 2012, the supreme court suspended the law license of Naomi E. Soldon, Shorewood, for six months, retroactively to Oct. 16, 2010. Disciplinary Proceedings Against Soldon, 2012 WI 122. Soldon stipulated that she had committed professional misconduct in three separate incidents and that her license should be suspended for six months.

    The first incident occurred in September 2007, when Soldon left an Illinois department store with merchandise, valued at $958.40, for which she had not paid. A warrant was issued, and she was eventually arrested in October 2009 in Illinois. She was convicted of felony retail theft, and thereby violated SCR 20:8.4(b).

    The second incident occurred in February 2009, when Soldon stole several video games from a department store in Wisconsin. Soldon was arrested and charged with misdemeanor retail theft as a repeater. She pleaded guilty and was convicted of that charge. Soldon again violated SCR 20:8.4(b).

    The third incident occurred in October 2009, when Soldon stole a candy bar from a store in Wisconsin. Soldon was issued a municipal citation and was found guilty and fined $177. Her dishonest conduct violated SCR 20:8.4(c).

    In a previous disciplinary action, on April 16, 2010, the supreme court suspended Soldon’s law license for six months for professional misconduct involving committing criminal acts of theft and fleeing and eluding an officer, failing to report convictions, and failing to cooperate with the OLR’s investigation. Her license remains suspended.

    Disciplinary proceeding against Mark A. Phillips

    On Nov. 29, 2012, the supreme court publicly reprimanded Mark A. Phillips, Elm Grove. Disciplinary Proceedings Against Phillips, 2012 WI 119. Phillips was admitted to the bar in Wisconsin in 1981. His license remains suspended because of a previous disciplinary suspension, as well as his failure to comply with mandatory continuing-legal-education-reporting requirements and to pay State Bar of Wisconsin dues.

    Phillips charged an unreasonable fee in violation of former SCR 20:1.5(a) when, after accepting $1,500 from a client’s parent as an advance-fee payment against which he was to charge $150 per hour, he kept the entire $1,500 after performing only three hours of work. By refusing to refund the $1,050 in advanced fees that he had not earned, Phillips failed to take steps to protect the client’s interests upon termination of representation, in violation of former and current SCR 20:1.16(d).

    In addition to reprimanding Phillips, the court ordered Phillips to complete, within 12 months, 20 hours of continuing legal education relating to ethics, and to pay $1,050 in restitution to the Lawyers’ Fund for Client Protection, which had reimbursed the client’s parent.

    Phillips’ disciplinary history includes a 2006 one-year suspension for misconduct that included improperly obtaining loans from a client, engaging in dishonest conduct, failing to act with reasonable diligence and promptness, failing to return a client’s files promptly, and failing to file timely tax returns and to pay taxes that were due. In 2007, Phillips was suspended for three years for committing a criminal act (willful attempted federal income tax evasion) that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects.

    Disciplinary proceeding against Thomas E. Bielinski

    On Dec. 18, 2012, the supreme court revoked the law license of Thomas E. Bielinski, Brookfield. Disciplinary Proceedings Against Bielinski, 2012 WI 123. Bielinski was admitted to practice in Wisconsin in 1985. His license had been temporarily suspended since June 2012 as a result of his failure to comply with mandatory continuing-legal-education-reporting requirements.

    Bielinski stipulated that he had committed professional misconduct by engaging in acts that led to being criminally charged in August 2011 with felony theft by false representation in violation of Wis. Stat. section 943.20(1)(d).

    The criminal complaint alleged that Bielinski stole $542,261.61 held in trust by the Milwaukee County clerk of circuit court and the Milwaukee County treasurer by falsely claiming to represent people entitled to such money. The criminal complaint further alleged that Bielinski unsuccessfully tried to steal an additional $84,784.64. Between 2007 and 2011, Bielinski fraudulently purported to represent persons involved in mortgage-foreclosure cases in which surplus funds remained after sheriff’s sales and he claimed the funds on their behalf.

    Bielinski filed 47 fraudulent claims with the Milwaukee County Circuit Court, 43 of which were approved and paid and four of which were denied. Bielinski’s financial records showed he had no legitimate law practice at the time and his fraud scheme was his primary source of income. To commit these thefts, Bielinski engaged in a series of identity thefts, false notarizations, forgeries, and thefts of court records. He filed forged documents with the Milwaukee County Circuit Court and thereby caused judges to sign orders to pay him surplus funds. After receiving payment, Bielinski often sanitized the records by removing his fraudulent pleadings and forgeries from the official court record.

    On April 4, 2012, Bielinski entered a guilty plea and was convicted of one count of felony theft (greater than $10,000) by false representation. He was sentenced to five years of initial confinement in prison with five years’ extended supervision and was ordered to pay restitution. Bielinski failed to provide the OLR or the supreme court clerk with written notice of his conviction.

    By engaging in conduct leading to a criminal conviction for one count of felony theft by false representation, Bielinski violated SCR 20:8.4(b). By failing to provide the OLR and the supreme court clerk with written notice of his criminal conviction within five days of his conviction, Bielinski violated SCR 21.15(5), enforceable via SCR 20:8.4(f).

    Bielinski had not previously been the subject of professional discipline.

    Disciplinary proceeding against Joseph Weigel

    On Dec. 19, 2012, the supreme court revoked the law license of Joseph Weigel, Milwaukee, effective Feb. 1, 2013. Disciplinary Proceedings Against Weigel, 2013 WI 124. Weigel was admitted to practice in 1960. He received a private reprimand in 1979 and a public reprimand in 2012.

    The facts underlying this matter arose out of the dissolution of Weigel’s practice with Alvin Eisenberg. Until March 1, 1999, Weigel was a four percent shareholder in the firm as well as an officer. Pursuant to a stock-redemption agreement dated March 1, 1999, Weigel became a shareholder and also began serving as the firm’s president.

    Before March 1, 1999, Eisenberg controlled the firm’s trust accounts and generally controlled the firm. In 1995 or 1996, the firm sustained a third-party forgery loss of more than $50,000 from its trust account. In 1996 or 1997, the firm sustained another third-party forgery loss of approximately $20,000 from its trust account. Those trust-account theft losses were not reported to the OLR, and the trust account was not replenished to replace the missing funds. In addition, the trust account was not isolated or replaced with a new trust account, and the firm did nothing to determine the exact amount of the trust-account deficiency.

    Weigel stated that the deficits in the trust account since 1999 ranged from $100,000 to more than $1 million and are currently between $100,000 and $150,000. He testified that the firm reduced the deficits in the trust account by injecting personal funds and not taking full distributions payable to the firm. He further testified that clients were paid promptly, but payments to third parties were delayed. He admitted that the trust account has been out of balance since 1999.

    The supreme court determined that the OLR proved 10 counts of misconduct, including failure to promptly deliver funds, in violation of SCR 20:1.15(d)(1); failure to maintain trust account records, in violation of SCR 20:1.15 (e) and (f); converting funds belonging to clients by using client funds to pay obligations owed to other clients or third parties, in violation of SCR 20:8.4(c); failing to produce trust account records, in violation of SCR 20:1.15(e); failing to disclose the existence of a trust account and falsely certifying compliance on annual State Bar of Wisconsin dues statements, in violation of SCR 20:1.15(i); and failing to disclose information to the OLR, in violation of SCR 22.03(6) and SCR 20:8.4(c).

    The court revoked Weigel’s license and ordered him to freeze existing trust accounts and to reimburse any shortfalls. The court further ordered Weigel to pay the full cost of the disciplinary proceeding.

    Disciplinary proceeding against Arik Guenther

    On Nov. 21, 2012, the supreme court suspended the law license of Arik Guenther, Jackson for 60 days. Disciplinary Proceedings Against Guenther, 2012 WI 116. Guenther was admitted to practice in Wisconsin in 1981. He has a lengthy disciplinary history, which includes three private reprimands, one public reprimand, and three disciplinary suspensions. His license remains suspended.

    The disciplinary proceeding arose out of Guenther’s representation of a client. After the client filed a grievance, Guenther failed to respond to the OLR or the district committee investigator. The OLR filed a complaint alleging that Guenther violated SCR 22.03(6) and SCR 22.04(1), enforceable via SCR 20:8.4(h). Guenther admitted the allegations and agreed the matter could be resolved without an evidentiary hearing.

    The court stated it was disciplining Guenther solely for his failure to cooperate during the investigation.

    Disciplinary proceeding against Peter Kovac

    On Nov. 21, 2012, the supreme court publicly reprimanded Peter Kovac, Milwaukee, and ordered him to pay the full cost of the proceeding. Disciplinary Proceedings Against Kovac, 2012 WI 117. Kovac was admitted to practice in Wisconsin in 1973 and practices in Milwaukee. In 2008, he consented to the imposition of a public reprimand for professional misconduct involving four clients. The misconduct included lack of cooperation with the OLR concerning three of the investigations.

    On Dec. 8, 2010, C.G. filed a grievance against Kovac. In January 2011, the OLR director sent Kovac a letter notifying him of C.G.’s grievance and directing him to respond. Kovac failed to respond and also did not respond to additional letters from the OLR director. Kovac did not respond until the supreme court issued an order to show cause why his license should not be suspended.

    On Feb. 17, 2012, the OLR filed a complaint alleging that by failing to timely respond to the notice of investigation from the OLR, Kovac violated SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h). Kovac signed an admission of service for the disciplinary complaint, but he did not file an answer.

    The court upheld the referee’s determination that the OLR was entitled to a default judgment. The court stated it was imposing the public reprimand solely for Kovac’s noncooperation with the OLR’s investigation.

    Disciplinary proceeding against Timothy Riordan

    On Dec. 27, 2012, the supreme court publicly reprimanded Timothy Riordan, Milwaukee, and ordered him to pay the full cost of the proceeding. Disciplinary Proceedings Against Riordan, 2012 WI 125. Riordan was admitted to practice in 1978 and has practiced in the Milwaukee area. His license has been suspended since October 2012 for nonpayment of dues and noncompliance with trust-account-certification requirements. He has no previous history of misconduct.

    The OLR filed a two-count disciplinary complaint against Riordan alleging violations of SCR 20:8.2(a) and SCR 40.15 (the attorney’s oath), which is enforced via SCR 20:8.4(g).

    The allegations arose out of a guardianship proceeding. Riordan and his wife petitioned to become guardians of the person and estate of A.C., a disabled military veteran suffering from dementia, the value of whose estate at one point exceeded $475,000. After the judge failed to grant the relief Riordan requested, Riordan made several derogatory statements about the judge, including the following:

    “[I]t has become apparent the rights of those under guardianship are not being fought for or protected due to financial, referral, or political ties to the Court all of which can be manipulated by the Court.

    “Court acts on the record to cover up its own involvement in violating [A.C.’s] and the Riordans’ rights. This is necessary because the Court uses people as property for exchange to uphold a system of institutions and agencies that steal people from families to meet their budgets and payrolls.

    “[T]hese Court and agency actions are forming an irreversible wound in the minorities in this community that do cause a depression of spirit and could lead to ‘violence’ as they realize the coercion and wrongfulness in which the Court is involved.

    “[T]his abuse of power by the Court affirms to the minority community that they are still pieces of property for exchange on the auction block of Milwaukee County’s injustice.

    “[The Court] uses [A.C.] as piece of property sold on the auction block to an agency’s self interests and profit.”

    Riordan admitted making the statements but argued that his statements should be protected by the First Amendment. The supreme court rejected the claim because the statements were made either falsely or with reckless disregard for the truth. The supreme court determined that Riordan violated SCR 20:8.2(a) and SCR 40.15, and it imposed a public reprimand.

    Public reprimand of Richard E. Thomey II

    The OLR and Richard E. Thomey II entered into an agreement for imposition of a public reprimand pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement and issued the public reprimand on Jan. 24, 2013, in accordance with SCR 22.09(3).

    Thomey was charged with one count of misdemeanor contempt of court, in violation of Wis. Stat. section 785.03(1)(b). State v. Thomey, No. 2012CM3021 (Milwaukee County Circuit Ct.). The factual basis for the charge is described below.

    Thomey represented a man facing charges of violating a domestic abuse restraining order, substantial battery, stalking, and burglary. The victim of the alleged crimes was served with a subpoena to appear for the trial. The victim failed to appear, and a bench warrant was issued for her arrest. That same day, police officers located the victim, who agreed to accompany them to the courthouse for the trial.

    The victim told the police she had spoken with Thomey earlier that day and he had told her not to go to work because the police would arrest her and bring her to court. She also reported that Thomey had previously told her that she did not have to appear at the trial if she did not want to or words to that substantial effect.

    The victim further reported that Thomey had left her a voice mail message that stated, “Hello, [victim]. Attorney Rick Thomey calling. I am [client’s] attorney. We are in court for a jury trial. You didn’t show up, I know, but the district attorney asked the court to issue a body attachment which means that she is sending police officers out to pick you up and bring you into court. I don’t know if you are either at home or at work. I know that you told me that you are out of state, they claimed you were not at the restaurant yesterday. Anyway, I guess that if you don’t want to be arrested you should make yourself scarce. If you want to call me back, I’m at [phone number.]”

    Thomey pleaded guilty to the single count contained in the criminal complaint. Citing several mitigating factors, the state recommended that Thomey be fined $1,000. Finding that a sentence of a fine only would “unduly depreciate the seriousness of the offense,” the presiding judge sentenced Thomey to four months in jail and fined him $1,000. The judge ordered Thomey to serve the first 30 days of the jail sentence and stayed the remaining 90 days of the sentence.

    Thomey admitted that he “obviously did not exercise the judgment the situation and my duty to the court and my duty to the justice system demanded.”

    By engaging in conduct that led to his criminal conviction on a charge of misdemeanor contempt of court, Thomey violated SCR 20:3.4(a), SCR 20:8.4(b), and SCR 20:8.4(c).

    Thomey has no prior discipline.

    Public reprimand of Peter D. Bear

    The OLR and Peter D. Bear, Monona, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement and issued the public reprimand in accordance with SCR 22.09(3) on Jan. 6, 2013.

    In 2009, following a woman’s conviction for theft in a business setting, the woman hired Bear to represent her in postconviction proceedings, as well as a possible legal malpractice claim against her trial attorney. Although Bear graduated from law school in 1979, he did not practice law until 2009, and this was his first case. Bear filed an appeal of the denial of the client’s motion for resentencing, which appeal was denied.

    By filing a brief that did not even minimally conform to the rules of appellate procedure, causing a three-month delay in the client’s case; failing to learn and understand the factual and legal substance of the client’s criminal appeal, the appellate process, and the correct standard for a legal malpractice claim in a criminal case; and misstating the law governing legal malpractice and, thereby, creating an unjustified expectation in the client’s mind that she would be successful in a malpractice suit against her trial attorney, Bear violated SCR 20:1.1, which requires a lawyer to provide competent representation.

    By charging the client a total of $13,665, including payments for fees and costs, State Bar dues, a continuing legal education conference registration fee, a new laptop computer, and Lexis fees and payments to an independent paralegal company to complete appellate briefs; and by charging the client for 122 hours of work to prepare her criminal appeal when it was a relatively simple appeal of an order denying a postconviction motion, the issue on appeal was straightforward, the record had already been developed, and the legal standards governing ineffective-assistance claims are well-settled in Wisconsin, and given the lack of positive results obtained, Bear violated SCR 20:1.5(a).

    By failing to respond to the client’s requests for an accounting of fees and costs, Bear violated SCR 20:1.5(b)(3).

    By failing to deposit into a client trust account the advanced fees and costs paid by the client and instead depositing the money into his law office operating account (with no evidence he intended to use the alternative-fee-placement provisions permitted by SCR 20:1.15(b)(4m)), Bear violated former SCR 20:1.15(b)(4).

    By sending the client several letters between 2009 and 2010 labeled “Bear [Doe] Law Office” without indicating the role of the nonattorney assistant whose name appeared in the firm name, Bear violated SCR 20:7.5(a).

    As a prior condition of the reprimand, Bear reimbursed the client $3,914.00.

    Bear has no prior discipline.