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    Wisconsin Lawyer
    Vol. 77, No. 5, May 2004

    Lawyer Discipline

    The Office of Lawyer Regulation (formerly known as the Board of Attorneys Professional Responsibility), an agency of the Wisconsin Supreme Court and component of the lawyer regulation system, assists the court in carrying out its constitutional responsibility to supervise the practice of law and protect the public from misconduct by persons practicing law in Wisconsin. The Office of Lawyer Regulation has offices located at Suite 315, 110 E. Main St., Madison, WI 53703, and Suite 300, 342 N. Water St., Milwaukee, WI 53202. Toll-free telephone: (877) 315-6941.

    Hearing to Reinstate Robert L. Taylor

    On Wednesday, June 30, 2004, at 9 a.m., a public hearing will be held before Referee James J. Winiarski in the State Office Building, 819 N. 6th St., Milwaukee, on the petition of Robert L. Taylor to reinstate his law license. Any interested person may appear at the hearing and be heard in support of, or in opposition to, the petition for reinstatement.

    Taylor became licensed to practice law in 1979 and practiced in Milwaukee County. His law license was revoked effective Dec. 14, 1987, Disciplinary Proceedings Against Taylor, 148 Wis. 2d 708, 436 N.W.2d 612 (1989). Last year, his law license was revoked retroactively, effective Dec. 14, 1992, Disciplinary Proceedings Against Taylor, 2003 WI 35, 261 Wis. 2d 1, 660 N.W.2d 665.

    Taylor's 1987 revocation was based on his conversion of client funds, his misrepresentation to the court and opposing counsel concerning his retention of funds in trust, his failure to deposit funds in trust, his failure to pay funds as agreed upon, and his misrepresentations concerning his application of tax refund proceeds. Taylor's later revocation was based on Taylor's petition for consensual license revocation due to, in part, his 1990 federal criminal conviction of conspiracy to defraud by misapplying funds and embezzlement from a federal credit union.

    As to reinstatement, Taylor is required by SCR 22.29 to show, among other things, that his conduct since the revocation has been exemplary and above reproach; 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; 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; he has fully complied with post-discipline requirements; and 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.

    Taylor also has the burden of demonstrating by clear, satisfactory, and convincing evidence that he has the moral character to practice law in Wisconsin, that his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that he has fully complied with the terms of the orders of revocation and court rules.

    Further information may be obtained from Office of Lawyer Regulation (OLR) Investigator Mary Ahlstrom or Assistant Litigation Counsel Julie M. Falk, 110 E. Main St., Suite 315, Madison, WI 53703, (877) 315-6941 (toll-free).

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    Disciplinary Proceeding against Alan D. Eisenberg

    On March 2, 2004, the Wisconsin Supreme Court suspended the law license of Alan D. Eisenberg, 62, Milwaukee, for one year, commencing April 6, 2004. The court also ordered Eisenberg to pay the costs of the disciplinary proceeding ($27,260.30) and restitution to his client ($2,775.69). Eisenberg promptly paid the costs, made restitution, and requested that the effective date of his suspension be delayed. The OLR opposed that motion, and the court denied it.

    The suspension is based on Eisenberg's misconduct in five matters. In the first matter, a client retained an associate in Eisenberg's office to represent her in a divorce. When the associate left the firm, the client elected to have the associate continue representing her. Over a five-week period, the associate attempted to obtain her client's file from Eisenberg's office and obtain a partial refund of the $5,000 retainer the client had paid. The associate had to file a motion with the court to obtain her client's file. In addition, Eisenberg failed to return any portion of the retainer to the client, although the associate's billing reflected that the client was entitled to receive $2,775.69. The court found that by failing to promptly surrender to the client her file and any unearned fee, Eisenberg failed, upon termination of the representation, to take steps to the extent reasonably practicable to protect a client's interests, in violation of SCR 20:1.16(d). During the investigation of this matter, Eisenberg submitted information purporting to show that the entire retainer had been earned. However, he failed to indicate that the employees whose affidavits supported this claim had no personal knowledge of the work the associate had performed. The court found that in submitting this information to the OLR, Eisenberg violated SCR 20:8.4(c), by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and former SCR 22.07(2), by failing to fully and fairly disclose all facts pertaining to alleged misconduct.

    In the second matter, Eisenberg filed an application to appear pro hac vice in California. In his affidavit to support the application, Eisenberg stated that he had never been suspended from the practice of law when, in fact, Eisenberg's license had twice been suspended. The court found that Eisenberg thereby violated SCR 20:8.4(c), by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and SCR 20:3.3(a)(1), by knowingly making a false statement of fact to a tribunal.

    In the third matter, Eisenberg appeared before a Wisconsin Department of Transportation hearing examiner. During the hearing Eisenberg was highly disruptive, refused to obey the procedural rules, and left before the hearing was over. The court found that Eisenberg engaged in conduct intended to disrupt a tribunal, in violation of SCR 20:3.5(c). The court also found that Eisenberg's conduct violated that part of the attorney's oath, SCR 40.15, which states that an attorney shall refrain from offensive personality, and SCR 20:8.4(g), which states that it is misconduct to violate the attorney's oath.

    In the fourth matter, Eisenberg represented a woman regarding zoning and building violations that had been issued against the client's investment property. Eisenberg encouraged her to sell the property. At some point, the client entered into a listing contract to sell the property with Alan Eisenberg Real Estate Company. Eisenberg is also a real estate broker and runs Alan Eisenberg Real Estate out of the same office as his law firm. Eisenberg did not explain to his client the potential conflict of interest of his representation of her in court regarding the violations while acting as her broker to sell the property, nor did he have her sign a conflict waiver. Eisenberg also failed to give his client a reasonable opportunity to seek the advice of independent counsel. The court found that Eisenberg's actions violated SCR 20:1.8(a), which proscribes entering into a business transaction with a client except under certain circumstances.

    In the fifth matter, Eisenberg was in Oregon representing a man facing felony charges. The client found a detective's card at his home with a request that he call the detective and informed Eisenberg of this fact. Eisenberg placed a call to the Corvallis, Oregon, 911 Dispatch Center on a nonemergency line and stated that he needed to talk to a detective regarding a "life or death emergency." In a series of calls to the center, Eisenberg used vulgar language, demanded to speak with the detective, and threatened to "have [the detective's] badge" if he failed to contact Eisenberg immediately. The court found that Eisenberg's conduct in this matter served no substantial purpose other than to embarrass, delay, or burden a third person, in violation of SCR 20:4.4. In addition, the court found that Eisenberg's conduct violated SCR 4.1(a), which proscribes making a false statement of fact to a third person, and SCR 20:8.4(c). Finally, the court found that the conduct violated SCR 40.15 (the attorney's oath) and SCR 20:8.4(g).

    While noting that Eisenberg's misconduct and prior discipline, which includes two previous suspensions and a public reprimand, would warrant revocation, the court instead imposed a one-year suspension, stating that, given his age, a revocation might effectively prohibit Eisenberg from resuming his practice. The court indicated that it hopes the shorter suspension will be effective in deterring other attorneys from engaging in similar misconduct and motivate Eisenberg to avoid misconduct should he choose to return to the practice of law.

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    Public Reprimand of Jodie L. Bednar-Clemens

    The OLR and Jodie L. Bednar-Clemens agreed to an imposition of a public reprimand pursuant to SCR 22.09(1). A referee appointed by the supreme court thereafter approved the agreement and issued the public reprimand in accordance with SCR 22.09(3) on March 17, 2004.

    The reprimand included two grievances filed in connection with Bednar-Clemens's handling of three probate estates. In the first file, a woman died, leaving a son and daughter, with the son being appointed as the personal representative. After selling the woman's home, the personal representative delivered to Bednar-Clemens a check for more than $60,000, representing the woman's daughter's share of the home sale proceeds. Bednar-Clemens did not deposit the check into her client trust account or inform the daughter of the receipt of the check. The check was left uncashed in the file. For five months, Bednar-Clemens ignored calls from the daughter's lawyer, who then contacted the OLR. Bednar-Clemens subsequently sent the check to the daughter's lawyer, seven months after the home was sold. However, the decedent's stock, which was in Bednar-Clemens' possession, remained unsold. The personal representative had not been able to get in touch with Bednar-Clemens for more than one year.

    Bednar-Clemens failed to file an inventory and failed to respond to the court's notices of overdue inventory and delinquent estate. Substitute counsel was appointed to complete the estate.

    Bednar-Clemens failed to act with reasonable diligence and promptness, contrary to SCR 20:1.3; failed to keep a client reasonably informed about case status or promptly comply with reasonable requests for information, contrary to SCR 20:1.4(a); failed to timely deposit funds belonging to a client into a client trust account, contrary to SCR 20:1.15(a); and failed to promptly inform the woman's daughter of receipt of the sale proceeds or promptly deliver them, contrary to SCR 20:1.15(b).

    The second grievance involved Bednar-Clemens's handling of two estates that were opened in 1995 and 1996. The 1995 estate was opened after a woman died testate, leaving her estranged husband (a divorce was pending), along with children and grandchildren. Although a codicil named the woman's husband as personal representative, Bednar-Clemens asked the court to appoint the woman's daughter as personal representative, bypassing the woman's husband on the ground that he suffered from senile dementia. Bednar-Clemens did not request that a guardian ad litem be appointed for the husband in the estate, notwithstanding statutory provisions requiring that a guardian ad litem be appointed for any person interested in an estate who is incompetent and without a guardian. The only property interest that the woman left her husband was his right to use furniture and household goods as long as he maintained a homestead at their marital home.

    Bednar-Clemens considered the estate to have been fully administered by early 1996, after specific bequests and financial accounts were distributed and tax forms were completed. It is not known if household goods were distributed to the husband before he died in 1997. Bednar-Clemens took no action on the estate from 1996 until 2003, even though she had not filed an inventory or final account and had ignored notices from the court regarding those requirements. In 2003, the court issued an order to close the estate.

    The 1996 estate was opened after a testator died. The will evenly divided the estate between the testator's son and a daughter, with the son being appointed as personal representative. During 1997, Bednar-Clemens helped the personal representative to liquidate and distribute assets to himself and his sister.

    During 1997 and 1998, Bednar-Clemens ignored notices from the court that the estate was delinquent and that an inventory was required. In 2003, the court issued an order to close the estate.

    As evidenced by her own admission of unfamiliarity with the probate process, including the means by which to close estates, by her failure to promptly administer the estates, and by her failure in the 1995 estate to have a guardian ad litem appointed for the decedent's husband, Bednar-Clemens failed to provide competent representation as required by SCR 20:1.1. Bednar-Clemens violated SCR 20:1.3 by failing to file inventories and other required documents and promptly close the estates. In disregarding the court's notices, Bednar-Clemens violated SCR 20:3.4(c), which prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

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    Disciplinary Proceeding against Ty Christopher Willihnganz

    On March 26, 2004, the Wisconsin Supreme Court publicly reprimanded Ty Christopher Willihnganz, 35, Oshkosh, for professional misconduct.

    In the fall of 1998, a client hired a partner in the law firm in which Willihnganz was then an associate to represent the client on a municipal ordinance citation for trespassing. The partner entered a not guilty plea for the client, who signed an authorization allowing the law firm to appear on the client's behalf without the client being present. The partner assured the client in writing that no action would be taken unless it was first authorized by the client. The citation was scheduled for trial in late October 1998, but the partner was unavailable on that date, and the case was assigned to Willihnganz. The client was not given written notice of the trial date.

    The partner instructed Willihnganz to contact the client in order to prepare for trial and to contest the citation. On the scheduled trial date, Willihnganz appeared on the client's behalf, but the client was not present. Willihnganz entered a no contest plea, the client was found guilty, and a forfeiture was assessed against the client. Following the trial, Willihnganz told the partner what had occurred in court and that before the trial, Willihnganz had left several telephone messages for the client that were not returned. Willihnganz did not give the client written notice of the trial outcome. The client remained unaware of the forfeiture, and consequently, his driver's license was suspended for nonpayment of it. The client had to pay the forfeiture, plus a fee, to get his driver's license reinstated.

    By changing the client's plea from not guilty to no contest without the client's knowledge or consent, which resulted in the client being found guilty of trespass, Willihnganz violated SCR 20:1.2(a). Willihnganz also failed to timely respond to OLR staff requests to provide information, and he completely failed to respond to requests from a local district committee investigating the matter, contrary to SCR 21.15(4), 22.03(2), 22.03(6), and 22.04(1).

    Willihnganz's license has been suspended since June 6, 2001, for noncompliance with CLE reporting requirements. His license remains suspended.

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    Disciplinary Proceeding against Elizabeth Cavendish-Sosinski

    On March 26, 2004, the Wisconsin Supreme Court suspended the law license of Elizabeth Cavendish-Sosinski, 35, for nine months. The court further ordered that, prior to reinstatement, Cavendish-Sosinski must demonstrate control of any depression or mental health problems that might interfere with her ability to practice law in accordance with accepted professional standards. The court based Cavendish-Sosinski's suspension upon 25 counts of misconduct in nine client matters and one additional OLR inquiry.

    In the first matter, Cavendish-Sosinski failed, in violation of SCR 20:1.4(a), to communicate with her client regarding the status of the habeas corpus petition filed on his behalf. Cavendish-Sosinski also failed to timely respond to requests for information from the OLR and from the district committee subsequently assigned to investigate the grievance, in violation of SCR 22.03(2) and 22.04(1).

    In the second matter, a woman retained Cavendish-Sosinski, who then failed to appear for a final pretrial hearing regarding a municipal ticket. Her client also did not appear, based on Cavendish-Sosinski's advice that her appearance was not necessary. The court, therefore, entered a default against her client. Cavendish-Sosinski's conduct constituted a lack of diligence, in violation of SCR 20:1.3. Cavendish-Sosinski also failed to keep her client updated regarding the status of the matter, in violation of SCR 20:1.4(a). Finally, Cavendish-Sosinski violated SCR 22.03(2), 22.03(6), and 22.04(1) by failing to cooperate with the OLR and its district committee.

    In the third matter, the state public defender (SPD) appointed Cavendish-Sosinski in March 1998 to represent a defendant in post-conviction proceedings. Cavendish-Sosinski did not speak with her client until May 2000, despite her repeated promises in the preceding two years that she would do so. The SPD wrote to Cavendish-Sosinski numerous times directing her to communicate with her client. The SPD, in August 2001, removed Cavendish-Sosinski from the representation and informed her that, unless she voluntarily surrendered her certification to accept SPD appointments, it would take steps to decertify her. Cavendish-Sosinski failed to act with reasonable diligence in representing her client, violating SCR 20:1.3. Cavendish-Sosinski also failed to communicate adequately with her client, violating SCR 20:1.4(a). Finally, Cavendish-Sosinski violated SCR 22.03(2) and 22.04(1) by failing to cooperate with the OLR and its district committee.

    The fourth matter resulted from Cavendish-Sosinski's failure to cooperate with the OLR and its district committee in the investigation of a grievance in violation of SCR 22.03(2) and 22.04(1). The OLR dismissed the underlying grievance as not clearly evidencing misconduct.

    The fifth matter arose out of Cavendish-Sosinski's handling of a SPD-appointed appeal. Cavendish-Sosinski made initial contacts with her client, promising to visit him in prison. However, after these initial contacts Cavendish-Sosinski did not respond to the client's requests for information, including his requests for his transcripts. Cavendish-Sosinski failed to timely file the transcripts and, as a result, her client lost his appellate rights. Cavendish-Sosinski violated SCR 20:1.3 by her lack of diligence, SCR 20:1.4(a) by failing to communicate with her client, and SCR 20:1.16(d) by failing to return her client's transcripts. Cavendish-Sosinski also failed to cooperate with the OLR and its district committee in the investigation of the matter, in violation of SCR 22.03(2) and 22.04(1).

    In the sixth matter, Cavendish-Sosinski was hired to attempt to quash a bench warrant. Cavendish-Sosinski was hired in late summer of 2000, but her client did not hear from her until March 2001. Cavendish-Sosinski never took action to resolve the warrant, despite urgent pleas from the client in April and June 2001, wherein he indicated that the existence of the warrant was interfering with his job as an over-the-road driver and with his plans to marry. Cavendish-Sosinski violated SCR 20:1.3 by her lack of diligence, and SCR 20:1.4(a) by her failure to communicate with her client. Cavendish-Sosinski also violated SCR 22.03(2) by failing to cooperate with the OLR in its investigation of the grievance.

    In the seventh matter, a man retained Cavendish-Sosinski to represent him regarding a municipal ticket, as well as two misdemeanor charges in circuit court. A hearing in the municipal case was set for Dec. 20, 2001. Cavendish-Sosinski advised her client that he did not have to appear. On Dec. 22, 2001, the client received notice that the municipal court had entered a default judgment against him due to his failure to appear. In the misdemeanor cases, a hearing was scheduled for Dec. 27, 2001. Cavendish-Sosinski told the client's mother that the hearing had been adjourned at Cavendish-Sosinski's request. However, no adjournment had been requested or granted. The client appeared pro se, the cases were rescheduled, and the client hired new counsel and requested that Cavendish-Sosinski refund his retainer. Cavendish-Sosinski did not pay the refund until May 2002, several months after the OLR initiated a formal grievance investigation. Cavendish-Sosinski violated SCR 20:1.3 by her lack of diligence and SCR 20:1.16(d) by failing to promptly refund the retainer. Cavendish-Sosinski also violated SCR 22.03(2) by failing to cooperate with the OLR in its investigation of the grievance.

    In the eighth matter, Cavendish-Sosinski represented a woman in a municipal case, beginning in December 2001. In the early months of 2002, Cavendish-Sosinski worked on the case and met with her client several times, including a final meeting in March 2002. In April 2002, the client received notice that the municipal court had entered a default judgment against her. The client and her husband thereafter attempted unsuccessfully on numerous occasions to contact Cavendish-Sosinski by phone. The client sent Cavendish-Sosinski a certified letter in May 2002, but received no response. Cavendish-Sosinski, in response to the client's grievance, indicated that she considered the case closed. Cavendish-Sosinski violated SCR 20:1.4(a) by failing to respond to her client's requests for information. In addition, Cavendish-Sosinski violated SCR 22.03(2), by failing to cooperate with the OLR in its investigation.

    In the ninth matter, Cavendish-Sosinski, on appointment by the SPD in June 2001, represented a man in two post-conviction appeals. Cavendish-Sosinski did not communicate with her client and did not respond to the SPD's inquiries regarding her lack of contact with him. In September 2002, the court of appeals, acting on a request by the SPD, directed Cavendish-Sosinski to file affidavits proving that she had forwarded court records and transcripts to the SPD's appellate division. On Sept. 18, 2002, Cavendish-Sosinski sent the materials to the SPD. Cavendish-Sosinski violated SCR 20:1.3, by her lack of diligence, and SCR 20:1.4(a), by failing to communicate with her client. In addition, Cavendish-Sosinski violated SCR 22.03(2), by failing to cooperate with the OLR's investigation.

    The 25th and final count of misconduct occurred in the course of an inquiry the OLR initiated to address Cavendish-Sosinski's purported depression and its effect on her ability to practice law. Cavendish-Sosinski never provided a written response to address questions raised in the inquiry and did not cooperate with the district committee's initial requests for information. Cavendish-Sosinski therefore failed to cooperate with an OLR investigation and with a district committee, in violation of SCR 22.03(2) and 22.04(1).

    Cavendish-Sosinski had no prior discipline. Cavendish-Sosinski's law license had been suspended by the court in December 2003 for her failure to cooperate with an OLR investigation.

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    Summary Suspension of Gary R. George

    On Feb. 2, 2004, pursuant to SCR 22.20, the OLR filed a motion for summary license suspension against Gary R. George, 50, Milwaukee. The motion was based upon George's plea of guilty to one count of conspiracy to commit offenses involving federal program funds and to commit wire fraud. On Feb. 3, 2004, the Wisconsin Supreme Court issued an order to show cause why the OLR's motion should not be granted. By letter dated Feb. 26, 2004, George informed the court that he would not oppose the suspension of his license. On March 8, 2004, the Wisconsin Supreme Court issued an order summarily suspending George's license, commencing April 1, 2004.