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  • Wisconsin Lawyer
    June
    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 Eric S. Brittain

    In a decision dated March 22, 2013, the Wisconsin Supreme Court publicly reprimanded Eric S. Brittain, who has practiced in Glendale and currently resides in New Zealand. The court also ordered Brittain to pay the cost of the proceeding. Disciplinary Proceedings Against Brittain, 2013 WI 26.

    Brittain’s misconduct arose out his representation of clients in two criminal matters. In the first matter, Brittain made an opening statement in which he told the jury about his own personal circumstances. The trial judge admonished Brittain not to reflect on personal matters in his opening statement. Thereafter, Brittain approached the client, put his hands on the client’s shoulders, and said to the jury, “I know … a brave man when I see one.”

    After the trial judge instructed Brittain not to vouch for the client, Brittain started to tell the jury about the client using first-person narrative. The judge interrupted and informed Brittain that he could not make an opening statement in the form of a first-person narrative. The judge excused the jury and then, out of the jury’s presence, admonished Brittain further. Brittain returned and continued his opening statement, to which the prosecution made two objections that the trial judge sustained. After the judge issued the second ruling, Brittain turned to look at the judge, paused, and then said to the jury, “And so, ladies and gentlemen, under a lot of – a lot of obstacles, we are here today.” The court subsequently found Brittain in summary contempt of court.

    By injecting personal and irrelevant information about himself, and by vouching for the client, Brittain violated SCR 20:3.4(e). By suggesting that the court was creating “obstacles” to the defense, Brittain engaged in conduct intended to disrupt a tribunal, in violation of SCR 20:3.5(d).

    In the second matter, Brittain represented an individual at an arraignment. After submitting the defendant’s not-guilty plea, Brittain initiated an exchange with the trial judge regarding discovery demands. After the trial judge informed Brittain that she had adjourned the matter and instructed him to file a motion on the discovery issues, Brittain disregarded the judge’s instructions and told her that her behavior was “inappropriate.”

    Later, the trial judge held a hearing on a discovery motion filed by Brittain. Brittain argued with the judge and at one point, in a loud voice, asked the judge to recuse herself. He then said that her statements about his behavior were “ridiculous.” The judge reconvened the hearing for the afternoon, at which time Brittain suggested that the judge suffered from a physical or health issue that could affect the client’s right to a fair trial.

    By engaging in abusive, belligerent, and obstreperous conduct directed at the judge during representation of a client, Brittain violated SCR 20:3.5(d).

    Brittain had no prior discipline.

    Disciplinary Proceeding Against Jeffrey A. Reitz

    On March 29, 2013, the Wisconsin Supreme Court ordered the law license of Jeffrey A. Reitz, Milwaukee, suspended for 10 months effective May 3, 2013. The court ordered Reitz to pay the full cost of the proceeding ($6,943.09) and to distribute all funds in his trust accounts to their rightful owners. The court also ordered that funds for which the rightful owners cannot be located be transferred to the state treasurer’s office as unclaimed or unidentifiable property and that Reitz demonstrate that all funds were distributed as ordered. Finally, the court ordered that Reitz’s trust accounts be subject to monitoring for two years after he resumes the practice of law. Disciplinary Proceedings Against Reitz, 2013 WI 27.

    The disciplinary action mainly concerned Reitz’s handling of trust accounts and funds. Reitz made disbursements that created negative balances in two client trust accounts and a $9,000 shortfall in the firm trust account, violating SCR 20:1.15(e)(5)a., former SCR 20:1.15(f)(1)b. (effective between July 1, 2004 and Dec. 31, 2009), and former SCR 20:1.15(a) (effective through June 30, 2004). Reitz failed to distribute trust account checks to clients for periods of one year to more than seven years, deposited settlement payments into trust without distributing the funds, failed to negotiate with subrogated parties, failed to pay a client money withheld from a 2002 personal injury settlement until October 2008, and failed to distribute or reissue more than 60 uncashed checks written on his trust account, violating SCR 20:1.15(d), former SCR 20:1.15(b) (effective through June 30, 2004), and SCR 20:1.3.

    Reitz deposited earned fees into a client trust account and distributed the funds through that account, not the business account, violating SCR 20:1.15(b) and former SCR 20:1.15(a) (effective through June 30, 2004). Reitz did not create and retain complete trust account records for the firm trust account, contrary to SCR 20:1.15(e)(6).

    Reitz falsely certified to filing an overdraft agreement with the Office of Lawyer Regulation (OLR) and to complying with trust account record-keeping requirements, both violations of SCR 20:1.15(i)(4). He failed to cooperate with the OLR, violating SCR 20:8.4(h), SCR 22.03(6), and SCR 20:1.15(e)(7), by not producing requested trust account records and by providing incomplete and inaccurate records. Reitz failed to file tax returns and pay taxes on income earned by the firm, violating SCR 20:8.4(c) and (f). He violated SCR 20:1.3 by failing to pursue a matter, including not presenting a settlement offer to clients and failing to file a claim before the statute of limitation expired.

    Reitz did not notify a client of his suspension, violating SCR 20:8.4(f) and SCR 22.26(1)(a) and (b). He misrepresented his compliance with the suspension order, violating SCR 20:8.4(c). Reitz failed to return calls from a client and failed to keep her informed regarding her medical malpractice matter. He failed to apprise the client of a medical malpractice attorney’s evaluation of her claim and unilaterally abandoned efforts to timely assert the client’s claim or to find another attorney to assert the claim, without notice to the client and without returning the client file, violating SCR 20:1.4(a)(3) and (4) and (b) and SCR 20:1.16(d).

    Reitz received a five-month license suspension in 2005 and a 90-day suspension in 2009.

    Disciplinary Proceeding Against Victor M. Arellano

    In a decision dated March 21, 2013, the Wisconsin Supreme Court publicly reprimanded Victor M. Arellano, Middleton. The court also ordered Arellano to pay $10,240.13, representing 25 percent of the total cost of the disciplinary proceeding. The court found the reduction was warranted in part because of the disparity between the complaint’s allegations and recommended discipline and the court’s ultimate conclusions. Disciplinary Proceedings Against Arellano, 2013 WI 24.

    The OLR filed a complaint alleging 14 counts of misconduct based on events that occurred between 1991 and 2007. The OLR initiated the proceeding after four women, all former clients, filed grievances alleging professional misconduct against Arellano. The OLR’s complaint sought revocation of Arellano’s law license. During litigation of the disciplinary proceeding, one witness changed her story and conveyed to the OLR’s counsel exculpatory evidence that had not been disclosed to the OLR during its investigation. The OLR promptly disclosed these developments to Arellano’s counsel. Ultimately, the OLR voluntarily moved to dismiss six misconduct counts before trial. Two counts were dismissed at trial after one of the grievants did not appear in person and the referee decided to not permit telephone testimony. The referee ultimately concluded, and the court agreed, that Arellano committed two counts of misconduct, warranting a public reprimand.

    Arellano’s misconduct related in part to his conduct during the OLR’s investigation of one of the grievances. The court accepted the referee’s findings and conclusions that Arellano was aware of the rules and of his obligation to be truthful but chose to lie and to mislead the OLR’s district investigative committee. The court found that in doing so, Arellano undermined the integrity of both the lawyer regulation system and the legal profession.

    Arellano’s misconduct also related in part to his solicitation of a prospective client. Around the time a woman filed a discrimination charge against her former employer, Arellano initiated contact with her by calling her on the phone and leaving voicemail messages. Arellano solicited employment as her lawyer in the discrimination matter. The woman hired Arellano and the firm he was then affiliated with to represent her in the matter.

    By making misrepresentations to the OLR and to its district committee, or members thereof, in the course of the OLR’s investigation of a grievance, Arellano violated SCR 22.03(6), enforceable via SCR 20:8.4(h).

    By initiating contact with a prospective client and making one or more unsolicited telephone calls to the prospective client for the purpose of inducing the prospective client to hire him, Arellano violated former SCR 20:7.3(c).

    Arellano received a private reprimand in 2008.

    Disciplinary Proceeding Against Joseph M. Engl

    On April 30, 2013, the Wisconsin Supreme Court approved a stipulation filed by the OLR and Joseph M. Engl, Sheboygan, pursuant to SCR 22.12. In the stipulation, Engl agreed that he had committed two acts of professional misconduct and that the revocation of his Wisconsin law license was the appropriate level of discipline for his misconduct. The court approved the stipulation and ordered revocation of Engl’s law license, effective immediately. Disciplinary Proceedings Against Engl, 2013 WI 36.

    The first matter concerned Engl being charged, in March 2012, with six felonies. State v. Engl, No. 2012CF108 (Wis. Cir. Ct. Manitowoc Cnty.). In October 2012, Engl pleaded no contest to two of those felonies: child enticement involving sexual contact and sexual assault of a child under age 16. According to the criminal complaint, Engl communicated via email with a female who explicitly informed Engl that she was 15 years old. Their communications included discussions about meeting in person for the purpose of having sexual intercourse. Engl drove to the girl’s workplace and picked her up. Engl then engaged in sexual contact with the girl. The OLR and Engl stipulated that the convictions on the two felony counts constituted violations of SCR 20:8.4(b).

    In the second matter, Engl accepted $2,300 in advanced fees from a couple who hired Engl to represent them in a bankruptcy proceeding. Because Engl did not have his own client trust account, he gave the funds to an attorney with whom he shared office space, who placed the funds into that attorney’s client trust account. Engl did not have any formal professional association with the attorney in whose client trust account the funds were placed. Upon learning that Engl was facing felony charges, the couple requested and received a full refund of the advanced fees they had paid. The OLR and Engl stipulated that Engl’s failure to maintain his own client trust account, instead placing the clients’ advanced fees into a client trust account that he neither owned nor controlled, placed the funds at risk of being improperly used, thus violating SCR 20:1.15(b)(1) and (4).

    In 2005, Engl was publicly reprimanded after being convicted of one count of using a computer to facilitate a child sex crime. In that instance, Engl entered an Internet chat room and communicated with an individual he believed to be a 14-year-old girl but who actually was a police detective. When Engl arrived at the location where he had arranged to meet the girl, he was arrested.