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  • Wisconsin Lawyer
    May
    01
    2013

    Lawyer Discipline

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    Public Discipline

    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.

    Private Discipline

    The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, a summary of facts and professional conduct rule violations in matters in which the OLR imposed private reprimands. The summaries do not disclose information identifying the reprimanded attorneys. The summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems.

    Public Reprimand of Philip Dahlberg IV

    The Office of Lawyer Regulation (OLR) and Philip Dahlberg IV, Jackson, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A Wisconsin Supreme Court-appointed referee approved the agreement, and issued the public reprimand on Feb. 18, 2013, in accordance with SCR 22.09(3).

    A man and a woman (the clients) who had been in an automobile accident hired Dahlberg to represent them in a personal-injury action. Dahlberg filed suit against the driver of the other vehicle and other parties on Oct. 7, 2007. Dahlberg prepared the case for trial, but in January 2009, he learned that neither of the physician experts he planned to have testify would be available for trial. Unable to present medical testimony supporting damages, Dahlberg settled each claim for $2,500. On Jan. 4, 2010, the clients signed releases, and Dahlberg deposited a total of $5,000 into his trust account.

    Dahlberg then initiated preliminary discussions with a health-care provider and a county general-assistance medical program to possibly reduce or waive their liens. A county department of child support enforcement also contacted Dahlberg about a statutory lien. Offers to settle certain liens were made to Dahlberg. However, Dahlberg did not complete the negotiations with any of the lienholders, and the liens remained pending.

    By failing to take meaningful steps over two years to resolve outstanding medical and child support liens arising out of and in connection with the settlement of the clients’ 2007 personal-injury lawsuit, Dahlberg violated SCR 20:1.3.

    By failing to inform the clients regarding offers to settle outstanding liens and by failing to consult with them about the offers to settle the liens and obtain their informed consent regarding these offers or otherwise consult with the clients regarding the means by which their objectives were to be accomplished, Dahlberg violated SCR 20:1.2(a) and SCR 20:1.4(a)(1) and (2).

    By failing to keep the clients informed regarding the status of their settlement and the progress made in negotiating lien reductions, including offers to eliminate or significantly reduce lien amounts, and by failing to respond to the clients’ repeated requests for information regarding the settlement of their personal-injury lawsuit, Dahlberg violated SCR 20:1.4(a)(3) and (4).

    By failing to provide any written statement or accounting to the clients regarding the settlement proceeds received in connection with their personal-injury lawsuit, Dahlberg violated SCR 20:1.5(c).

    By failing to promptly deliver to one client settlement funds to which she was entitled following an offer by her health-care provider to waive or reduce its lien and by failing to deliver to the other client settlement funds to which he might be entitled, Dahlberg violated SCR 20:1.15(d)(1).

    Dahlberg has two previous private reprimands, one imposed in 2007 and the other in 2008.

    Disciplinary Proceeding against Joan M. Boyd

    On Feb. 21, 2013, pursuant to a petition for consensual license revocation filed under SCR 22.19, the Wisconsin Supreme Court revoked the law license of Joan M. Boyd, currently of Gillett and previously of Shawano. The court also ordered Boyd to pay restitution of $7,500 to a former client and to pay restitution of $16,299 to the Wisconsin Lawyers’ Fund for Client Protection for payments the fund made to four other former clients.

    Boyd stated in her petition that she could not successfully defend against 28 counts of misconduct stemming from eight grievance matters in which the Preliminary Review Committee had found cause to proceed, as well as multiple additional allegations of misconduct in seven more grievances pending with the OLR.

    Boyd’s misconduct generally involved her being hired to pursue postconviction relief in criminal cases or to pursue debtor relief in bankruptcy actions. The OLR alleged multiple violations of SCR 20:1.1, SCR 20:1.4(a) and (b), SCR 20:1.5(a), and SCR 20:1.16(d). In several matters, Boyd affiliated herself with an entity in Ohio that was operated by a permanently disbarred Ohio attorney and that promoted itself as providing research assistance to lawyers throughout the United States. The OLR’s allegations included six counts alleging that Boyd had assisted the disbarred lawyer and the entity to engage in the unauthorized practice of law in Wisconsin.

    Boyd received a consensual public reprimand in 2000, a court-imposed public reprimand in 2006, a five-month license suspension in 2008, a six-month suspension in 2009, and a 12-month suspension in 2010. Boyd’s law license was under suspension when the court issued its revocation order.

    False Statement to Tribunal

    Violation of SCR 20:3.3(a)(1)

    In January 2010, a woman hired the lawyer to represent her with regard to her late husband’s trust. The late husband’s son was trustee. The lawyer attempted to resolve disputes between the client and the trustee. On March 3, 2010, the lawyer requested information from the trustee and stated that a court action would be filed if the information was not received by March 12, 2010. On March 5, 2010, counsel for the trustee called the lawyer and discussed the information request.

    After the deadline passed without receipt of the information requested, the lawyer filed suit. After the suit was filed, another attorney in the firm took the lead role in the representation. Successor counsel filed a motion for summary judgment to which was attached an affidavit from the lawyer. The affidavit included a copy of the March 3, 2010, letter to the trustee, and stated, “This was the last correspondence I had with [the trustee], as he did not respond to this letter in any way.”

    By signing an affidavit in support of a summary judgment motion asserting that the trustee did not respond to the March 3, 2010, letter in any way, the lawyer violated SCR 20:3.3(a)(1), which states, “A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

    The lawyer had no prior discipline.

    Criminal Act Reflecting Adversely on Fitness to Practice

    Violations of SCR 20:8.4(b)

    In November 2009, law enforcement officers were dispatched to locate a reckless driver. A deputy located what turned out to be the attorney’s car. The deputy then conducted a traffic stop, gave the attorney standard field-sobriety tests, and placed the attorney under arrest. A blood test conducted later placed the attorney’s blood alcohol concentration at 0.108. The attorney was charged with third-offense operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration of 0.08 or more.

    The attorney’s two prior OWI arrests occurred in 1990 and 1999. The attorney’s second conviction occurred in January 2000. The attorney did not report the second conviction to the OLR, because SCR 21.15(5) was not in effect at that time. Rather, the OLR learned of the second OWI conviction only as a result of investigating the third OWI conviction.

    In February 2011, the attorney pleaded guilty to the third OWI charge, and the circuit court sentenced the attorney to 30 days in jail with Huber privileges. The court also revoked the attorney’s driver’s license for two years and issued a fine. The attorney reported the conviction to the OLR within five days after the conviction.

    By engaging in conduct leading to misdemeanor convictions of second-offense and third-offense OWI, the attorney in each instance violated SCR 20:8.4(b), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

    The misconduct was mitigated by the attorney’s lack of prior discipline and by the attorney’s voluntary participation in and successful completion of treatment programs for chemical dependency.

    Lack of Diligence; Failure to Communicate; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

    Violations of SCR 20:1.3, SCR 20:1.4(a)(3) and (4), and SCR 20:8.4(c)

    An attorney represented a client in a postconviction relief motion and appeal following the client’s guilty plea and conviction on charges of sexual assault of a child younger than 16 and repeated sexual assault of a child.

    The attorney did not file a notice of appeal in a timely manner. Thereafter, the attorney filed a motion to extend time for filing of the notice of appeal. The Wisconsin Court of Appeals granted the motion and made timely the notice of appeal filed by the attorney.

    By failing to file a notice of appeal in a timely manner in the client’s case, the attorney violated SCR 20:1.3.

    By failing to communicate with the client from May 2010 to August 2011, and by failing to respond to numerous letters from the client during that time, the attorney violated SCR 20:1.4(a)(3) and (4).

    By concealing from the client that the attorney had not filed a notice of appeal and that there was no appeal pending in August 2011, the attorney violated SCR 20:8.4(c).

    The attorney had no prior discipline.

    Truthfulness in Statements to Others; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

    Violations of SCR 20:4.1(a) and SCR 20:8.4(c)

    An attorney and his wife were acquaintances of a man and the man’s domestic partner. In serving as a volunteer assistant for the attorney, the attorney’s wife prepared the man’s will. Two weeks later, the man died.

    The attorney denies seeing the will before the man’s death. He further denies the man hired him for estate-planning purposes.

    The day after the man died, his domestic partner brought the will to the attorney’s office. The will was later delivered to the man’s daughter’s attorney. The daughter believed that the signature on the will was not in her father’s handwriting.

    The domestic partner hired the attorney to serve as probate counsel. Before filing a case, the attorney prepared a letter that the partner provided to a homeowners’ association in Las Vegas, where the man had property. The letter stated that the attorney prepared the decedent’s will and that he was the attorney for the estate. The letter also requested that the domestic partner be allowed to exercise his rights as the executor to do anything needed to maintain the property. The homeowners’ association gave the domestic partner keys to the Las Vegas property.

    The daughter later forwarded to the attorney the results from a handwriting expert, who concluded that the man did not sign the will. The daughter was named personal representative without objection.

    By preparing and disseminating the letter containing false and misleading statements, the attorney violated SCR 20:4.1(a) and SCR 20:8.4(c).

    As a condition of the private reprimand, the attorney agreed to earn six credits of continuing legal education in law office management within 18 months after execution of the private reprimand agreement.

    The attorney had no prior discipline.

    Lack of Diligence; Failure to Communicate; Conflict of Interest; Failure to Surrender Client Photographs

    Violations of SCR 20:1.3, SCR 20:1.4(a)(3) and (4), SCR 20:1.7(a), and SCR 20:1.16(d)

    In February 2010, an attorney agreed to represent two people who had been in a motor vehicle accident, a driver and a passenger. The attorney failed to obtain a written conflict waiver from either client at the start of the representation.

    By June 2010, the passenger client had completed medical treatment for her injuries and returned to work. The attorney communicated a settlement offer to the passenger client in February 2011, but thereafter the attorney did not communicate with this client until August 2011 or respond to her requests for information. At this point, the passenger client was facing collection efforts by her medical providers. The client requested that the attorney assist her with these collection efforts, but the attorney was unavailable to do so.

    Although the attorney ultimately settled the case involving the driver client, he took little or no further action on behalf of the passenger client and did not file suit on her behalf. The passenger client ultimately terminated the representation in January 2012 and hired new counsel. After hiring new counsel, the passenger client sought from the attorney photographs taken of her injuries. The attorney failed to deliver the requested photographs to successor counsel.

    By failing to advance the interests of the passenger client for more than two years, failing to communicate appropriately with the client, and failing to surrender photographs, the attorney violated SCR 20:1.3, SCR 20:1.4(a)(3) and (4), and SCR 20:1.16(d). By representing the clients when a concurrent conflict of interest existed, without obtaining a written waiver, the attorney violated SCR 20:1.7(a). The attorney had no prior discipline.

    Lack of Diligence; Failure to Take Steps to Protect Client’s Interests

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

    An attorney received a private reprimand for lack of action after the client’s conviction for third-offense operating while intoxicated. The attorney represented the client during the circuit court proceeding. The attorney and the client agreed that the case turned on a legal issue that would likely need to be appealed. After losing a pretrial motion concerning the suppression of blood test results, the client pleaded guilty but preserved the issue for appeal. The attorney filed timely notice of intent to pursue postconviction relief but never clearly communicated to the client that the client should hire another lawyer to handle the appeal. The attorney made some effort to farm out the appeal to another lawyer. However, the attorney failed to clearly establish the other lawyer would take on the appeal. The second lawyer returned the client file without comment. After a new judge reviewed the case, lifted the stay, and jailed the client because no appeal had been filed, the attorney refunded fees previously paid by the client for trial representation.

    By failing to clearly advise the client that the attorney was withdrawing from representation for the appeal and failing to ensure that separate counsel was hired, the attorney violated SCR 20:1.3. By failing to take reasonable steps to notify the client to hire separate counsel to pursue the appeal, the attorney violated SCR 20:1.16(d).

    The attorney had a prior private reprimand and a prior 60-day suspension, each of which was imposed decades earlier.

    Failure to Honor Attorney’s Oath

    Violation of SCR 40.15, as enforced via SCR 20:8.4(g)

    An attorney represented a criminal defendant in several matters. In June 2011, the client, then in jail, wrote the attorney a letter containing inappropriate sexual content. The attorney wrote the client and informed him that his letter was unwelcome.

    However, certain personal comments contained in the attorney’s letter attracted the attention of jail officials, who advised the attorney that the jail screened all inmate mail, with the exception of legal correspondence. The attorney continued to correspond with the client. Concerned that the attorney’s letters were actually personal correspondence, jail officials began opening all letters from the attorney addressed to the client. Jail officials did not advise the attorney of this altered screening policy.

    When the attorney learned that jail officials were opening all her correspondence to the client, the attorney wrote and mailed to the client a letter containing the following text: “If you are reading this and you are not [my client] you are in deep sh**. I represent [my client] on other legal matters in [Wisconsin]. F*** OFF.… F****** EAT ME.”

    The attorney subsequently withdrew from representation of the client. SCR 20:8.4(g) provides that it is professional misconduct for an attorney to violate the attorney’s oath. Pursuant to SCR 40.15, an attorney must “abstain from all offensive personality.…” By writing a letter to jail officials containing crude and vulgar content, the attorney violated the Attorney’s Oath and SCR 20:8.4(g).

    The attorney had no prior discipline.

    Offensive Personality Contrary to Attorney’s Oath

    Violation of SCR 40.15, enforced via SCR 20:8.4(g)

    While representing a client in civil litigation, an attorney sent to opposing counsel emails, transmitted late at night, that contained derogatory, vulgar, and hostile comments, some of which threatened violence. The attorney was under the influence of alcohol when he sent the emails, which stated such things as “Bring IT you [expletive] loser!” and “… I want to knock you (sic) fricking face off!” The attorney did not actually carry out any of the threatened acts, and he apologized to opposing counsel. The emails were unrelated to the litigation or the parties’ interests. The messages were offensive and therefore violated the provision in SCR 40.15 (the Attorney’s Oath) that states, “I will abstain from all offensive personality.…” The oath is enforced under SCR 20:8.4(g). The attorney had a private reprimand in 2003 for a conflict of interest.