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    Wisconsin Lawyer
    Vol. 78, No. 7, July 2005

    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.

    Disciplinary Proceeding against Michael J. Backes

    In an opinion filed May 25, 2005, the Wisconsin Supreme Court ordered a public reprimand of Michael J. Backes, Milwaukee, for professional misconduct in three client matters. Disciplinary Proceedings Against Backes, 2005 WI 59. The court further ordered that Backes make restitution by refunding fees in two of the matters.

    In the first matter, following a criminal conviction that was affirmed on appeal, a man contacted Backes in March 1998 about possible postconviction representation. The next month, the man mailed Backes a check for $2,500, representing Backes' flat fee in the matter. Backes met with the client in prison in June 1998, and Backes stated he would file a postconviction motion on the client's behalf within the next 60 days. Backes filed nothing. The client made several attempts to ascertain the status of the matter, including three attempts to terminate Backes' representation and to obtain a refund of the retainer. By failing to file a postconviction motion or to conclude his review of the client's file for more than 2.5 years, Backes failed to act with reasonable diligence and promptness, contrary to SCR 20:1.3. In violation of SCR 20:1.4(a), Backes did not keep the client reasonably informed about the status of the matter nor respond to the client's written inquiries as to case status. By failing to respond to the client's spe-cific inquiries about various postconviction relief issues, Backes failed to explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation, violating SCR 20:1.4(b). By failing to refund the full fee that the client paid until May 2002, after the client filed a grievance, Backes violated SCR 20:1.16(d).

    In a second matter, a woman hired Backes on Jan. 28, 2000 to represent her son in a criminal case. The woman signed an agreement to pay Backes a flat, "nonrefundable" fee of $2,500 to resolve the case short of trial. Backes met with the client in jail on Jan. 31, 2000, and the client asked Backes to immediately file a motion for bail reduction. The client's mother made the same request, explaining it was a high priority. Backes had not filed the requested motion as of Feb. 25, 2000. His representation was then terminated. The mother also requested an itemization and return of any unearned fees. Successor counsel was hired on Feb. 28, 2000. That attorney moved for bail modification on March 7, 2000, and the motion was granted the same day. On March 29 and May 3, 2000, the client's mother again requested that Backes return the unearned fees. It was not until March 21, 2002, some two years after Backes was discharged, that he provided the mother with a partial refund of $1,500. In imposing discipline, the supreme court concluded that Backes failed to act with reasonable diligence and promptness in representing the client, violating SCR 20:1.3, and that Backes failed to timely refund an advance payment that had not been earned, violating SCR 20:1.16(d). Adopting the referee's recommendation, the court ordered that Backes refund an additional $500 to the client.

    In a third matter, in November 1999 the mother and aunt of a man imprisoned following a 1993 felony conviction hired Backes to file a motion for post-conviction relief on behalf of the man. The mother signed an agreement to pay Backes a nonrefundable fee of $2,500, which the aunt delivered in installments of $1,500 on Nov. 18, 1999, and $1,000 a month later. The women believed that they were paying to bring a motion to court, and they testified in the disciplinary action that they would not have paid $2,500 just for case review. The aunt acted to terminate the representation on April 29, 2000, and requested a refund of funds advanced. On March 21, 2002, Backes refunded $2,250 of the $2,500. In failing to complete a review of the client's case between Nov. 19, 1999 and April 29, 2000, Backes failed to act with reasonable diligence and promptness in representing the client, violating SCR 20:1.3. In violation of SCR 20:1.4(a), Backes failed to respond to a Jan. 27, 2000, letter from the client containing suggestions and questions, declined the client's calls from prison, and further failed to address inquiries from the client's family. Backes violated SCR 20:1.16(d) by not refunding any portion of the funds advanced on behalf of the client until March 2002. The court's discipline order requires Backes to return the remaining $250 of the total $2,500 advanced on the client's behalf.

    In addition to imposing the public reprimand and the restitution orders, the court ordered that Backes pay the full $9,863.85 costs of the disciplinary proceeding. Members of the court also continued analysis of issues surrounding cost assessments in two separate concurring opinions and in a separate opinion that concurred in part with and dissented in part from the outcome.

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    Disciplinary Proceeding against Jay A. Felli

    On May 25, 2005, the Wisconsin Supreme Court publicly reprimanded Jay A. Felli, Brookfield. Disciplinary Proceedings Against Felli, 2005 WI 58. A referee found that Felli committed three of the 11 counts of misconduct alleged by the Office of Lawyer Regulation (OLR). Accordingly, the referee recommended a three-month suspension rather than the one-year suspension sought by the OLR. Felli appealed. The court adopted the referee's conclusions as to Felli's misconduct, finding that Felli violated SCR 20:1.3 by failing to act with reasonable diligence and promptness in his representation of a divorce client, and violated SCR 22.03(6) by making misrepresentations to the OLR during two of its grievance investigations, but the court determined that a public reprimand represented the appropriate discipline. The court also ordered that Felli pay the $22,171.60 costs of the disciplinary proceeding.

    Felli had been privately reprimanded in 1997 for practicing law while his license was suspended for failing to pay State Bar dues.

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    Public Reprimand of Gordon F. Barrington

    The OLR and Gordon F. Barrington, 52, Wauwatosa, agreed to the 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 on May 2, 2005, in accordance with SCR 22.09(3).

    A woman who was a defendant in a civil suit retained Barrington in December 2002 to represent her. After an amended complaint was filed and answered, Barrington was served with the plaintiff's interrogatories in mid-October 2003. Barrington said he temporarily misplaced the client's file when he took it home to work on it. Barrington did not inform the client about the interrogatories or the need to respond to them, nor did Barrington respond to the interrogatories.

    On Dec. 8, 2003, the plaintiff filed a motion for summary judgment or for an order to respond to the interrogatories. The motion was scheduled for a hearing on Dec. 15, 2003. Because Barrington believed the notice for the motion hearing was insufficient under local rules and because he did not see the Dec. 15, 2003 hearing scheduled on the Consolidated Court Automation Program (CCAP) records, Barrington said he mistakenly calendared the motion hearing for Feb. 17, 2004, which was the next scheduled date he noted on CCAP.

    Barrington did not tell the client about the plaintiff's motion or the Dec. 15, 2003, hearing date nor did Barrington appear at the hearing. The circuit court therefore granted a default judgment against the client.

    On or about Jan. 19, 2004, the client telephoned Barrington about another matter and Barrington told her that a judgment had been entered against her in the civil matter. Barrington believed he had only recently discovered the judgment on CCAP while working on the file and did not think he had received notice of the judgment entry.

    Barrington and the client met on Jan. 27, 2004, to discuss the matter. The client said Barrington told her he would prepare the answers to the interrogatories and begin preparing documents to request relief from the judgment by the end of the next day. According to Barrington, he said he would try to prepare answers to the interrogatories within 48 hours. Between Jan. 29, 2004, and Feb. 5, 2004, the client left several messages on Barrington's office phone and his cell phone but received no reply. Barrington stated that he was ill and out of the office on Jan. 30, 2004, and Feb. 2, 2004. The client reached Barrington by phone on Feb. 5, 2004, and he told her he was still working on the interrogatory answers and other documents. The client then terminated Barrington's representation and retained successor counsel.

    The successor counsel successfully moved to reopen the judgment, and the underlying civil suit was settled before trial in August 2004. However, after the judgment was reopened, the client was ordered to pay $1,238.25 to the plaintiff's attorney for fees and costs incurred in connection with supplemental proceedings the plaintiff instituted following entry of the default judgment. Additionally, the client maintained that a portion of the $10,897 in attorney fees she paid to successor counsel was incurred for work related to reopening the judgment and therefore was the direct result of Barrington's neglect.

    On Oct. 27, 2004, Barrington tendered a check payable to the trust account of the client's successor counsel for $1,238.25 to reimburse the client for the amount the court ordered her to pay when reopening the judgment. Barrington also stated his intention to reimburse the client for her costs related to reopening the judgment.

    Barrington's failure to respond to interrogatories and failure to attend the Dec. 15, 2003, motion hearing, thereby causing a default judgment to be entered against his client, and his failure to promptly prepare a motion for relief from judgment constituted a lack of diligence, contrary to SCR 20:1.3. Barrington's failure to inform his client of receipt of interrogatories, to notify his client of the Dec. 15, 2003, motion hearing and the subsequent default judgment against her, and to respond to several of his client's phone calls after she learned of the default judgment violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed and to respond to reasonable requests for information.

    Additionally, by failing to file a written response to the grievance until after he had received three written requests for a response, the last of which was personally served on him, Barrington violated SCR 22.03(2), which requires a lawyer to file a written response within 20 days of a written request to do so. By failing to file a written supplemental response at the OLR's request until after the Wisconsin Supreme Court issued an order to show cause why his license should not be suspended for failure to cooperate, Barrington also violated SCR 22:03(6), which provides that a lawyer's willful failure to provide relevant information in the course of an investigation is misconduct.

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    Public Reprimand of Michael Roe

    The OLR and Michael Roe, 61, Rhinelander, agreed to the imposition of a public reprimand pursuant to SCR 22.09(1). A supreme court-appointed referee thereafter approved the agreement and issued the public reprimand on April 22, 2005, in accordance with SCR 22.09(3).

    Roe was appointed by the State Public Defender (SPD) to represent a defendant in two separate criminal matters. Sentencing in both cases occurred on the same day. The sentence in one case was for a bifurcated one-year prison term, which the court later amended to a one-year jail term because a bifurcated prison sentence must be for at least 15 months.

    On the day of sentencing the client asked Roe to file a notice of intent to pursue postconviction relief. Roe did not file a notice of intent until after the time for doing so had expired.

    Roe did not respond to the client's several attempts to contact him after sentencing regarding postconviction matters.

    After Roe filed a notice of intent to pursue postconviction relief, the SPD mailed a letter to Roe informing him that, in light of his untimely filing of the notice of intent in the client's cases, it would be necessary for Roe to file with the court of appeals a motion to extend the time for filing the notice. The letter explained that the SPD would be unable to appoint appellate counsel until Roe filed the motion. Additionally, the SPD provided Roe with a sample motion he could use as a model and asked him to send the SPD a copy of the motion after he filed it.

    Roe did not file the motion for a time extension. Roe submitted no evidence that he communicated with the client in any way about the untimely filing of the notice of intent, about the SPD's request that he file a motion for an extension, or about his failure to file that motion. Roe said he may have been waiting to file the motion to extend the time until the trial court amended the sentence in the second case, but he admitted that he had no "acceptable excuse" for his failure to timely file the notice of intent or for his failure to file a motion for an extension.

    Roe's failure to timely file a notice of intent to pursue postconviction relief in the client's cases, and his failure, on the SPD's request, to file a motion with the court of appeals to extend the time for filing a notice of intent, constituted a lack of diligence, violating SCR 20:1.3. Roe's failure to respond to the client's inquiries regarding postconviction matters and his failure to keep the client informed about developments regarding the untimely filing of the notice of intent, violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed and to respond to reasonable requests for information.

    Roe was suspended for 90 days in 1983 for misconduct in two client matters. Additionally, Roe received two private reprimands, one in 1985 and the other in 1990, both for failing to adequately communicate with clients. Roe also was suspended for six months in 1996 for multiple counts of misconduct in handling a client matter, which misconduct included a lack of diligence and a failure to communicate.

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    Public Reprimand of Edward J. Ritger

    The OLR and Edward J. Ritger, 58, Random Lake, agreed to the imposition of a public reprimand pursuant to SCR 22.09(1). A supreme court-appointed referee thereafter approved the agreement and issued the public reprimand on April 19, 2005, in accordance with SCR 22.09(3).

    Ritger had been the attorney for a man and his wife since about 1984. The man died in January 2001, and his will provided that his son and the decedent's wife, the son's stepmother, act as co-personal representatives for his estate. Ritger, acting as the attorney for the estate, filed a Petition for Administration and had the will admitted to probate on April 23, 2001. Ritger represented the estate and also represented the son and the stepmother in their capacities as copersonal representatives of the estate.

    In a May 2001 letter, Ritger informed the son that, although his father's marital agreement with the stepmother provided that she receive all life insurance proceeds, the son had been listed as a beneficiary of and received the proceeds from one of his father's life insurance policies. Ritger proposed that the son give to the stepmother from estate assets an amount equivalent to the life insurance proceeds the son had received. Ritger told the son that the stepmother was his client and he advised the son to get separate legal advice with respect to "matters which may involve a conflict of interest." Nevertheless, Ritger stated, "I am, however, willing to complete the probate paperwork at [the stepmother's] expense because the marital agreement requires [the stepmother] to pay for that expense."

    On Aug. 6, 2001, the deadline for filing claims, Ritger filed a claim against the estate on behalf of the stepmother for the life insurance proceeds allegedly due her. The son said he did not learn of the claim until 2003. Ritger cannot confirm that he sent a copy of the claim to the son, but he said he thought the son was monitoring the estate on the Internet and was aware of the claim. There was no court activity in the estate after Aug. 6, 2001, until a notice of overdue inventory was filed on June 12, 2002. Ritger subsequently filed a petition to extend the time to file the inventory, and the general inventory was filed on Oct. 14, 2002. There was no further court activity after the general inventory was filed until the court sent a Notice of Delinquent Estate to the copersonal representatives on June 11, 2003. Subsequently, on July 1, 2003, Ritger requested a scheduling conference due to the stepmother's unresolved claim.

    The son actively involved his attorney sometime in the spring of 2003 to assist him in concluding his father's estate. That attorney's associate sent a letter to Ritger on April 14, 2003, asking for information about the stepmother's claim.

    On Aug. 8, 2003, a scheduling conference was held and the court ordered Ritger removed as attorney for the estate and as attorney for the stepmother. Thereafter, the stepmother retained successor counsel to represent her in her claim against the estate, both the son and the stepmother resigned as copersonal representatives, and a different attorney was appointed personal representative.

    Ritger indicated that some of the delay in processing the estate was because he developed health problems in the fall of 2002 and had surgery in January 2003, from which he was recovering into the spring of 2003.

    By representing an estate and its copersonal representatives at the same time that he represented one of the copersonal representatives personally as a claimant against the estate, Ritger engaged in a conflict of interest, contrary to SCR 20:1.7(a). Ritger's failure to advance the estate's interests between Aug. 6, 2001, when a claim was filed against the estate, and Sept. 10, 2003, when he was removed as attorney for the estate, constituted a lack of diligence, contrary to SCR 20:1.3. Ritger violated SCR 20:1.4(a) by failing to keep the son, one of the copersonal representatives, reasonably informed about the status and progress of the estate proceedings between July 2001 and June 2003, and in particular, by failing to notify the son about the claim filed against the estate in August 2001.

    Ritger received a private reprimand in 1996 for violations of SCR 20:1.3 and SCR 20:1.4(a) in connection with his representation of a client in a real estate matter and for his failure to cooperate in the investigation of the matter. In 2003 Ritger was privately reprimanded for communication with a represented party, contrary to SCR 20:4.2.

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