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    Wisconsin LawyerWisconsin Lawyer
    Vol. 78, No. 11, November 2005

    Private Reprimand Summaries

    The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, in an official State Bar publication 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 following summaries of selected private reprimands, imposed by the OLR, are printed to help attorneys avoid similar misconduct problems. Some of the summaries may indicate violations of the rules that were in effect prior to Jan. 1, 1988. The current rules proscribe the same types of misconduct.

    Under the new rules of lawyer regulation, a court-appointed referee will impose private reprimands with consent of the attorney. See SCR 22.09 (2000).

    Neglect; Failure to Communicate

    Violations of SCR 20:1.3; 20:1.4(a)

    An attorney, on appointment by the State Public Defender (SPD), represented a man charged with attempted robbery. The defendant also faced revocation of probation. The Department of Corrections (DOC) placed the defendant on a probation hold after his arrest. The attorney's representation covered the revocation matter and the criminal charge.

    Four months after the defendant was arrested, the DOC revoked his probation and he began serving the prison sentence of two years confinement and two years of extended supervision that had been imposed and stayed for the prior felony conviction. When the robbery charge was resolved by a guilty plea approximately three months later, the lawyer requested that the court give the defendant credit for the time served from the date of his arrest to sentencing. However, the court noted that the defendant would only be entitled to credit for the time served until his probation was revoked. The lawyer and the defendant could not recall the exact date of revocation. The lawyer advised the court that he would "double check that." The judgment of conviction indicated that credit for time served was to be determined.

    Three weeks after sentencing, the defendant wrote to the lawyer asking about the sentence credit because his sentence notification reflected no credit. The defendant also mentioned pursuing postconviction relief, although the 20 days allowed for filing of a notice of intent to pursue postconviction relief had passed. The lawyer did not respond in writing to the defendant's letter nor did he forward the letter to the SPD's office. The defendant called the lawyer innumerable times over six months but only talked to the lawyer once. The lawyer did not take any action to obtain the sentence credit.

    After filing a grievance, the defendant wrote to the sentencing court and requested sentence credit. One year after the initial sentencing, the court entered an order granting the defendant 121 days of credit.

    The lawyer violated SCR 20:1.3 by failing to take any action on the sentence credit and SCR 20:1.4(a) by failing to respond to the defendant's requests for information regarding the credit. The lawyer's disciplinary history consisted of a public reprimand issued more than 20 years ago for neglect and misrepresentation to a client and to the OLR's predecessor regarding the neglect.

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    Failure to Provide Competent Representation; Failure to Abide by Client Decisions; Failure to Communicate; Advancing an Unwarranted Claim; Failure to Cooperate with OLR

    Violations of SCR 20:1.1; 20:1.2(a); 20:1.4(a); 20:3.1(a)(1); 22.03(2)

    A person (the client) hired an attorney to represent him as the defendant in a lawsuit brought by the client's former attorney (the plaintiff) for collection of fees. The client believed the plaintiff had forgiven the debt and that, as a result, the client did not owe the plaintiff any money. The attorney entered his appearance and filed an answer on behalf of the client on July 23, 1999.

    On Sept. 16, 1999, the plaintiff filed a motion for summary judgment, which was scheduled to be heard on Oct. 18, 1999. On Oct. 12, 1999, the attorney signed an affidavit in opposition to the motion for summary judgment. The affidavit was filed with the court on Oct. 14, 1999. The affidavit was based on information given to the attorney by his client, rather than on personal knowledge as required by Wis. Stat. sec. 802.08(3).

    Sometime before Oct. 18, 1999, the attorney told the plaintiff he would not appear at the hearing to contest the motion. The attorney did not inform his client of the date for the hearing on the summary judgment motion nor did he tell his client that he was not going to appear at the hearing to contest the motion. Neither the attorney nor the client appeared at the motion hearing on Oct. 18, 1999.

    According to the order granting the summary judgment motion, the plaintiff advised the court that the attorney had notified him that the client was "consenting to the entry of judgment." The order also stated that the attorney's affidavit in opposition to the motion for summary judgment was not timely filed and did not meet the statutory requirement that it be based on personal knowledge.

    The client did not consent to the entry of judgment against him.

    The attorney states he told his client there was no valid defense to the plaintiff's lawsuit, and admits he filed the answer to the complaint and the affidavit opposing the motion for summary judgment in an effort to negotiate a compromise and a settlement of the plaintiff's claim.

    After the judgment was entered against the client and garnishment to collect on the judgment was commenced, the attorney, at the client's urging, filed a motion on Feb. 24, 2000, to reopen the judgment. At about this same time, the judgment against the client was satisfied. The motion to reopen the judgment was heard on April 17, 2000.

    The motion to reopen the judgment contained no new information. At the April 17, 2000, hearing the court denied the motion, stating, "There's no basis, and it has not been made within a reasonable time ... I think the Court's time was wasted and also Counsel's time was wasted." The court also pointed out that at the Oct. 18, 1999, hearing, the motion for summary judgment had not been opposed.

    The attorney failed to file a written response to the grievance until after the OLR personally served him with a third request for a response.

    By stipulating, or tacitly consenting by his nonappearance, to the granting of the plaintiff's motion for summary judgment, without first consulting with and obtaining permission from his client for such consent, the attorney violated SCR 20:1.2(a), which provides, in part, that a lawyer shall abide by a client's decisions concerning the representation's objectives.

    By failing to inform his client of the summary judgment hearing date, and by failing to inform his client that he would not appear at the hearing and contest the motion for summary judgment, the attorney violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter.

    By filing an affidavit in opposition to the plaintiff's motion for summary judgment when he knew there was no valid defense to the motion, the attorney violated SCR 20:3.1(a)(1), which prohibits an attorney from knowingly advancing a claim or defense that is unwarranted under existing law.

    By filing an affidavit in opposition to the motion for summary judgment that was untimely and that did not meet the statutory requirement that it be based on personal knowledge, the attorney failed to provide competent representation, in violation of SCR 20:1.1.

    By filing a motion to reopen the judgment when he knew there was no basis for such a motion, the attorney violated SCR 20:3.1(a)(1).

    By failing to file a written response to the grievance until after the OLR personally served him with a third request for a response, the attorney failed to fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response, in violation of SCR 22.03(2).

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    Committing a Criminal Act; Failure to Notify Supreme Court and OLR of Conviction

    Violations of SCR 20:8.4(b); 21.15(5)

    On Dec. 10, 2003, an attorney was convicted of a second OWI misdemeanor offense, contrary to Wis. Stat. sec. 346.63(1)(a). The attorney was sentenced to 25 days in jail, his driver's license was revoked for 16 months, and he was fined.

    On Jan. 8, 2004, the attorney was convicted of a third OWI misdemeanor offense, contrary to Wis. Stat. sec. 346.63(1)(a), for which he was sentenced to five months in jail, with Huber privileges, to commence on April 5, 2004. The attorney's driver's license also was revoked for 30 months and he was fined.

    The attorney did not report his two misdemeanor convictions to the OLR or to the clerk of the supreme court within five days, as required by SCR 21.15(5). The attorney said his failure to report the convictions was inadvertent in that he was an inactive member of the State Bar at the time and it did not occur to him that he was required to report the convictions.

    By engaging in conduct resulting in two separate convictions for second and third offenses of OWI, contrary to Wis. Stat. sec. 346.63(1)(a), the attorney committed criminal acts that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b).

    By failing to notify the clerk of the supreme court and the OLR of his two misdemeanor convictions for OWI, the attorney violated SCR 21.15(5), which states that it is misconduct for an attorney to fail to report a criminal conviction within five days to the clerk of the supreme court and to the OLR.

    The attorney had no prior discipline.

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    Conflict of Interest

    Violations of SCR 20:1.7(a); 20:1.9(a)

    An attorney defended two clients in a nuisance action, filed by a town, that concerned the clients' adjoining properties. The court issued an injunction order that applied to both the clients' properties. The attorney subsequently appeared on behalf of both clients in at least two hearings related to enforcing the injunction order.

    The attorney then filed an adverse possession action on behalf of one client against the other. When the attorney filed the adverse possession lawsuit, he was still listed as attorney of record for both clients in the town's action. The attorney did not obtain written consent from either client before filing the adverse possession action.

    The court later reopened the town's action due to the town's allegations of a continued violation of the court's injunction order. At the hearing, the attorney entered an appearance, without informing the court which client he was representing. At no time before the hearing did the attorney either inform the second client that he was no longer representing him in the nuisance action or file a formal withdrawal of the second client's representation.

    In the adverse possession case, the second client filed a motion to disqualify the attorney based on a conflict of interest. The court granted the motion with the qualification that if the attorney voluntarily dismissed the matter, the court would allow the attorney to continue as counsel for that purpose only. The attorney dismissed the adverse possession case.

    Another hearing was held in the town's action. At that time, the attorney entered an appearance only on behalf of the first client; however, the attorney did not file a formal motion to withdraw, send a letter to the second client, or otherwise communicate to the second client that he was not appearing at the hearing on his behalf.

    After the second client's death, the attorney filed a second adverse possession action against the second client's estate. The court granted the estate's motion to disqualify the attorney, finding that an attorney-client relationship existed between the attorney and the second client in the past and that there was a substantial relationship between the subject of the town's action and the adverse possession action.

    As a result of the above conduct, the attorney was found to have violated SCR 20:1.7(a) by representing one client in the first adverse possession action against the second client while he was still attorney of record for the second client in the town's action. The attorney was additionally found to have violated SCR 20:1.9(a) by representing a client in the second adverse possession action against the second client's estate, due to the substantial relationship between the subject of the town's action and the second adverse possession action.

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    Ex Parte Communication with a Tribunal

    Violation of SCR 20:3.5(b)

    A defendant was sentenced to six months in jail for a misdemeanor charge. About a month and a half after he began serving his sentence, the defendant and his mother each sent a letter to the sentencing judge requesting a sentence reduction or early release. The defendant and his mother did not send copies of their letters to the district attorney. The judge forwarded the letters to the district attorney's office and asked for a response. The attorney who prosecuted the case sent a letter response to the judge opposing any reduction of the defendant's sentence on various grounds, but the attorney did not send a copy of the letter to the defendant. The court then sent a letter to the defendant, with a copy to the attorney, denying the defendant's request and enclosing a copy of the attorney's letter.

    By failing to send the defendant a copy of a letter to a judge arguing the state's position against a sentence reduction, the attorney engaged in an ex parte communication with a tribunal, contrary to SCR 20:3.5(b).

    The attorney had no prior discipline.

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    Practice During Suspension; Misrepresentation to Court; Failure to Maintain Trust Account Records

    Violations of SCR 10.03(6); 20:3.3(a); 20:1.15(e)

    While a lawyer's law license was administratively suspended for nonpayment of State Bar dues, he attended an initial appearance in a criminal matter on behalf of a relative. When the court asked if he was an attorney, the lawyer answered that he was, without telling the court that his law license was currently suspended. When the court asked if he was going to act as the defendant's attorney in the matter, the lawyer replied, "Today I am." The lawyer thereby violated SCR 10.03(6) for practicing law while suspended for failure to pay Bar dues, which rule is enforceable under SCR 20:8.4(f), and SCR 20:3.3(a) for representing to the court that he was an attorney without disclosing that he was not currently allowed to practice. The lawyer provided no further representation after the initial appearance.

    An allegation also was made about a 1999 transaction in the lawyer's client trust account. When the allegation was made, the lawyer had not practiced law for at least three years. The lawyer was unable to produce requested trust account records regarding the transaction. While the OLR did not find clear and convincing evidence of a violation regarding the transaction, the lawyer's failure to preserve his complete trust account records for at least six years was in violation of former SCR 20:1.15(e) (effective until July 1, 2004).

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