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    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 4, April 2006

    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.

    Disciplinary proceedings against Gino M. Alia

    The Wisconsin Supreme Court suspended the law license of Gino M. Alia, Kenosha, for 90 days, effective March 14, 2006. Alia also was ordered to pay the $22,174.29 cost of the proceeding. Disciplinary Proceedings Against Alia, 2006 WI 12.

    Alia represented the plaintiff in an action in circuit court. At trial, Alia had an expert witness identify an exhibit as a copy of the expert's report, even though Alia had made white-out changes to the exhibit. Thus Alia knowingly offered false evidence in the form of the expert's false testimony, contrary to SCR 20:3.3(a)(4). Further, Alia used the exhibit, which he had changed from the original expert report, and held out the exhibit to the court, the jury, and the expert witness as an accurate copy of the original report. Alia's conduct also violated SCR 20:3.4(b), which prohibits an attorney from falsifying evidence, or counseling or assisting a witness to testify falsely.

    In altering the exhibit before the expert testified, and by making further redactions after the expert had testified and identified the altered report as the expert's own work, Alia obstructed adverse counsel's access to evidence by destroying or concealing information in a document that had potential evidentiary value. Thus Alia violated SCR 20:3.4(a), which prohibits an attorney from unlawfully obstructing another party's access to evidence or unlawfully altering, destroying, or canceling a document having potential evidentiary value. The same conduct violated SCR 20:8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.

    Alia violated SCR 20:3.3(a)(1), which provides that a lawyer shall not knowingly make a false statement of fact or law to a tribunal, when he falsely stated to the circuit court, and led all parties to believe, that he had only made alterations to the exhibit in advance of the expert's testimony, and by claiming that all changes in the expert's report were made with the expert's knowledge and approval, when Alia's statements were untrue and he further altered the exhibit between the trial's first and second days.

    Alia also violated SCR 20:8.4(c) by inducing the expert to authenticate a report that Alia knew was not an accurate copy; falsely accusing adverse counsel and/or adverse counsel's client of fabricating an exhibit that represented adverse counsel's copy of the expert's report; and falsely accusing adverse counsel of being untruthful with the circuit court.

    Alia had no prior discipline.

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    Disciplinary Proceedings against Michael G. Artery

    On Feb. 7, 2006, the Wisconsin Supreme Court released its opinion suspending the law license of Michael G. Artery, 59, Delavan, for 60 days.

    The disciplinary case related to Artery's handling of six client matters, all of which had involved Artery's being appointed to do appellate work by the Office of the State Public Defender. The supreme court found that Artery had failed to communicate with three of the clients, contrary to SCR 20:1.4(a); that he neglected five of the clients' cases, contrary to SCR 20:1.3; that he failed to keep one of the clients informed on case strategy, contrary to SCR 20:1.2(a); and that he failed to respond to the Office of Lawyer Regulation's (OLR) inquiries in three of the investigations, contrary to SCR 21.15(4) and 22.03(2), (4), and (6). Disciplinary Proceedings Against Artery, 2006 WI 11.

    Unbeknownst to the court, Artery passed away on the evening of Feb. 6, 2006, in a Milwaukee hospital. However, the supreme court's disposition of a proceeding in which public discipline is imposed must be published in the Wisconsin Lawyer, pursuant to SCR 22.23(1).

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    Disciplinary Proceedings against Michael A. Gral

    On Feb. 27, 2006, the Wisconsin Supreme Court summarily suspended the law license of Michael A. Gral as of that date and until reinstated by the court. OLR v. Gral, No. 2006XX50-D. Gral agreed to the summary suspension of his law license pending final disposition of the disciplinary proceedings against him.

    The OLR sought the summary suspension pursuant to SCR 22.20, following Gral's entering a guilty plea to one count of mail fraud in U.S. v. Gral, No. 2:05-CR-00013-CNC, pursuant to a plea agreement with the U.S. government. In his Offer of Proof filed with the U.S. District Court for the Eastern District of Wisconsin, Gral acknowledged participating in a scheme with Robert G. Brownell, an employee of one of Gral's client's, that "had the effect of knowingly placing his own financial interests ahead of and to the detriment of [several of Gral's] clients, and knowingly depriving them of his honest services, causing losses."

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    Disciplinary Proceedings against Richard J. Krueger

    On Feb. 22, 2006, the Wisconsin Supreme Court suspended the law license of Richard J. Krueger, 75, Oconto, for 60 days effective March 8, 2006, and ordered Krueger to pay the $20,489.37 cost of the disciplinary proceeding. Disciplinary Proceedings Against Krueger, 2006 WI 17. The case involved Krueger's representation of an 82-year-old client in a Chapter 7 bankruptcy action.

    At the time the bankruptcy petition was filed in 1999, the client owed Krueger $7,384 in legal fees. Krueger failed to list this debt on the bankruptcy schedules he prepared for the client and failed to obtain the client's written consent to a potential conflict of interest. At the first meeting of creditors, the bankruptcy trustee asked Krueger's client if he had listed all of his debts, and the client responded that he had. Krueger was present and said nothing.

    After the client was discharged in bankruptcy, Krueger continued to represent him regarding three secured creditors who had filed adversary proceedings. While Krueger negotiated with two of those creditors, indicating that the client was unable to pay more than 60 percent of his debt to them, Krueger received $40,000 from the client, deposited $28,000 to his client trust account for the purpose of paying the creditors, and applied the $12,000 balance to his own current and past legal fees, including the $7,384 that should have been listed and was in fact discharged in the bankruptcy. When the OLR investigated, Krueger initially misrepresented to the OLR that the amount the client owed him was less than $500 at the time of the bankruptcy and that he had never been paid that amount.

    Although Krueger died subsequent to the court's issuance of its decision, publication in the Wisconsin Lawyer is required by SCR 22.23(1).

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    Disciplinary Proceedings against Thomas A. Fadner II

    On Feb. 23, 2006, the Wisconsin Supreme Court suspended the law license of Thomas A. Fadner II, Oshkosh, for nine months, effective March 30, 2006. The court also ordered Fadner to pay the $1,411.88 cost of the disciplinary proceeding. Disciplinary Proceedings Against Fadner, 2006 WI 18.

    Fadner's misconduct consisted of billing the Office of the State Public Defender (SPD) for third-party photocopying charges when the copies actually were made on his own copy machine, and for charging the SPD for sales tax on those copies when he did not pay the sales tax to the Wisconsin Department of Revenue during the time in question. Fadner knew that under SPD rules, in-house copying charges were not reimbursable. The court adopted the referee's finding that Fadner's conduct violated SCR 20:8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. Fadner also violated former SCR 20:1.15(a) and (b), effective before July 1, 2004, when, on at least three occasions, Fadner did not timely deliver to an investigator funds paid to him by the SPD for the investigator's fees and did not deposit the funds belonging to the investigator in his trust account.

    Fadner previously received a private reprimand in 1998.

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    Public Reprimand of Frederick Voss

    The OLR and Frederick J. Voss, 53, Rhinelander, entered into an agreement for 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 Feb. 4, 2006, in accordance with SCR 22.09(3).

    The misconduct leading to the public reprimand occurred during Voss's representation of a client in a criminal matter. In February 2002, Voss was appointed to represent the client in several pending criminal matters. Among the charges pending against the client in Marathon County on March 23, 2002, were counts of conspiracy to commit first-degree intentional homicide. The alleged intended victim of the conspiracy was a woman (B.W.) with whom the client had had a personal relationship. In connection with the conspiracy to commit homicide charges, a Marathon County circuit court judge had entered an Order for No Contact Provision, in which the client was ordered to have no contact with six named persons, including B.W. and a potential witness in one of the pending cases (J.O.). The order stated, in relevant part, "This includes no direct physical or indirect contact by telephone, writing of any kind, and includes no contact with the above-named persons through other persons, including any third party contact." The order also indicated that violations were punishable by criminal contempt and revocation of jail privileges. The order remained in effect on March 23, 2002.

    On March 23, 2002, Voss arranged for his incarcerated client to meet with B.W. and J.O., both of whom also were incarcerated on that date, in a visiting room at the Marathon County Jail. Voss did not inform the jailer of the no-contact order. Although Voss stated he did not read the no-contact order closely enough to recall those who were subject to it, the Seventh Circuit Court of Appeals in a related case opinion and the District 16 Committee assigned to investigate this matter both concluded that Voss knew there was a court order prohibiting the client from contacting several persons, including B.W. and J.O.

    By arranging for his client to meet with B.W. and J.O. in violation of the no-contact order issued by the Marathon County circuit court judge, Voss violated SCR 20:1.2(d), which states, in relevant part, "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent." By failing to disclose to jail personnel the material fact of the existence of the no-contact order, when disclosure was necessary to avoid assisting his client in a criminal act (the violation of the no-contact order), Voss violated SCR 20:4.1(b), which states, in relevant part, "In the course of representing a client a lawyer shall not knowingly fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client."

    Voss had no prior discipline.

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    Public Reprimand of Owen R. Williams

    The OLR and Owen R. Williams, 67, Amery, 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 Feb. 24, 2006, in accordance with SCR 22.09(3).

    Williams represented a client in a dispute with a truck dealer/repair shop (the dealer). The client owned a dump truck and his livelihood depended on his use of the truck. The client had two outstanding bills with the dealer, which the client disputed. In September 1999 the dealer sued the client in small claims court for payment of the first bill. In December 1999 the dealer filed a civil suit for payment of the second bill. The client believed Williams was going to file a counterclaim against the dealer. Williams said he did not agree to file a counterclaim.

    Williams represented the client in the small claims matter and argued faulty workmanship, but the court ruled in favor of the dealer, who received a money judgment and a writ of execution against the truck based on the judgment.

    Before the trial in the small claims matter, the client signed the title to his truck and gave it to Williams, who in turn transferred it to a friend and business partner who owned an automobile and truck repair shop. The friend paid off the client's truck loan and repaired the truck, making several other expenditures to improve the truck's condition.

    The client said that Williams told him he would use the title to "bond" the truck so the client could continue using it to earn a living until the situation with the dealer was resolved. The client said Williams explained that his fee of $2,500 would be taken out of the bond. The client did not understand how the "bond" would work, but he thought the money to cover it and Williams' fee ultimately would come from the money obtained from winning the counterclaim. It was not the client's understanding when he gave the signed truck title to Williams that Williams would transfer ownership of the truck to a third party.

    Williams said he told the client that his friend would take title to the client's truck, pay for any needed repairs, and pay the remaining balance on the client's truck loan. Williams said he explained to the client that the client could then set up a repayment plan with the friend and that the client would also owe the friend $2,500 for Williams' attorney fees. Williams told the client that the transaction was like bonding the truck. The friend signed a promissory note promising to pay Williams $2,500 pursuant to a specific payment schedule, but Williams never asked for or received any payments pursuant to the note. Williams did not memorialize in writing the terms of his agreement with the client or the client's agreement with the friend. The only written sales agreement between the client and the friend was the executed motor vehicle title.

    In February 2000, the dealer filed an amended complaint in the second lawsuit adding Williams' friend as a defendant. The amended complaint alleged that the transfer of the truck to the friend was fraudulent and that the friend knew of the plaintiff's claim in the small claims lawsuit.

    Williams continued to represent the client and also represented the friend in the dealer's second lawsuit. The client sent letters to Williams dated Feb. 10 and 17, 2000, asking Williams to respond to several questions, including when a counterclaim would be filed, but Williams did not respond to the letters. The client tried to call Williams several times before and after sending the February letters, but says he never received a response. Subsequently, in April or May 2000, the client retained successor counsel to represent him in the dealer's second lawsuit.

    Williams continued to represent the friend in the dealer's second lawsuit until he secured an order dismissing the friend as a defendant in June 2001, in exchange for the friend posting alternative security to the truck, to be used if the dealer prevailed. The friend paid the judgment from the small claims matter and obtained possession of the truck.

    Williams did not consult with or obtain a written conflict waiver from the client with respect to Williams' dual representation of the friend in the second lawsuit or to his representation of the friend in the second lawsuit after his representation of the client ended, nor did Williams obtain conflict waivers from his friend.

    The dealer's second lawsuit was suspended in the fall of 2001 while a bankruptcy action filed by the client was pending. When the matter resumed in 2002, a counterclaim filed by the client's successor counsel was dismissed due to fact and issue preclusion. Judgment in favor of the dealer was entered in November 2002.

    Except for using the truck for personal reasons on a few occasions, the friend has not used the truck since he obtained possession of it.

    After the friend obtained the truck, neither he nor Williams contacted the client or his successor counsel about what the client would need to do to regain title to the truck. Likewise, neither the client nor his attorney contacted Williams or the friend about reclaiming the truck.

    Williams violated SCR 20:1.4(b) by failing to adequately explain to the client the nature and terms of the transaction with the friend, by failing to reduce the agreement between the client and the friend to writing, and by failing to ensure that the client understood why Williams asked for the truck title.

    Williams failed to adequately consult with the client to ensure that the client understood Williams' decision not to file a counterclaim in the small claims matter, and failed to consult with the client about the requirements for and appropriateness of a counterclaim subsequent to the small claims judgment, contrary to SCR 20:1.2(a), which requires, in part, that a lawyer consult with a client as to how to pursue the objectives of the representation.

    Williams violated SCR 20:1.4(a) by failing to respond to at least two letters from the client requesting responses to specific questions, including a question about when a counterclaim would be filed, and by failing to respond to the client's telephone calls.

    Williams violated SCR 20:1.7(b) by representing the client in a business transaction with Williams' friend and business partner, from whom Williams had received a promissory note for the client's attorney fees, without consulting with the client and obtaining the client's written consent to the potential conflict.

    Williams violated SCR 20:8.4(c) by stating in a question to a witness at the small claims trial that the client owned the truck, by failing to disclose to the court that the truck's title had been conveyed to the friend, and by using the friend as an expert witness in a matter regarding a truck that the friend, in fact, owned.

    By representing the client while he represented his friend in the dealer's second lawsuit, without obtaining written consent from either the client or the friend for the dual representation, Williams violated SCR 20:1.7(b).

    By continuing to represent his friend in the second lawsuit when he had formerly represented the client in the same lawsuit, without obtaining the client's written consent, Williams violated SCR 20:1.9(a), governing conflicts of interest with former clients.

    Williams had no prior discipline.

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    Public Reprimand of Kathleen A. Sinclair

    Kathleen A. Sinclair, Elm Grove, was reprimanded for her conduct in two matters. In the first matter, she was retained to assist F.B. with his attempt to obtain postconviction relief. F.B. had moved to suppress evidence resulting from a traffic stop, but he later withdrew the motion and pleaded guilty.

    Sinclair promptly received all the transcripts, except those for the hearing at which F.B. waived his preliminary hearing. Later, F.B. sent two letters to Sinclair, who did not respond. F.B. then wrote to the OLR, stating that he had not heard from Sinclair since her appointment.

    Sinclair responded, stating that she intended to file a motion with the court of appeals for an extension to seek postconviction relief. F.B. asked that Sinclair contact him to discuss whether she was going to assist him. Sinclair and F.B. decided to move to withdraw his plea based on trial counsel's failure to pursue the suppression motion.

    The extension was granted. Before filing the motion to withdraw the plea, Sinclair failed to interview witnesses and trial counsel. She provided no affidavits with the motion. The court denied the motion, stating that the motion was "completely conclusionary and unsupported by any affidavit from the defendant as to what he understood, or failed to understand, concerning the withdrawal of the suppression motion." The court also found that there was not "an adequate showing that a motion to suppress would have been successful." Sinclair had 20 days in which to file a motion for reconsideration, but she allowed F.B.'s rights to expire.

    The OLR directed Sinclair to respond to F.B.'s allegations. After extensions had passed without sending a response, Sinclair sent a facsimile to the OLR. She stated that she previously sent her response, kept no paper copies, and needed to recover the information from her computer, and that her computer had crashed. Subsequently, she provided a response dated two months after her computer allegedly had crashed. Her response also made assertions that were contradicted by other witnesses.

    By filing the motion to withdraw F.B.'s plea without developing and providing a factual basis, Sinclair violated SCR 20:1.1. By failing to act on F.B.'s case for one year and acting only after being contacted by the OLR, and by allowing F.B.'s postconviction rights to lapse, Sinclair violated SCR 20:1.3. By failing to respond to F.B.'s letters or to otherwise communicate with him, Sinclair violated SCR 20:1.4(a). By failing to respond to or cooperate with the OLR, Sinclair violated of SCR 20:8.4(f), 21.15(4), and 22.03(6).

    In the second matter, Sinclair was retained to represent Q.M. on appeal. She filed a notice of appeal on Dec. 24, 2002, but allowed the appeal to become delinquent. She failed to file the brief despite receiving extensions and two orders from the court of appeals. She violated SCR 20:1.3 and SCR 20:3.4(c) for knowingly disobeying an obligation under the rules of a tribunal.

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