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    Vol. 79, No. 7, July 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.

    Medical Incapacity Proceeding against Charity A. Reynolds (n.k.a. Charity A. Harris)

    On May 9, 2006, the Wisconsin Supreme Court indefinitely suspended the law license of Charity A. Reynolds, Windsor, due to Reynolds' medical incapacity. Medical Incapacity Proceedings Against Reynolds, 2006AP444-D.

    On Feb. 20, 2006, the Office of Lawyer Regulation (OLR) had filed an SCR 22.34 petition seeking an indefinite suspension of Reynolds' law license. On April 10, 2006, the OLR and Reynolds filed a stipulation that Reynolds suffers from a medical incapacity that substantially prevents her from performing the duties of an attorney to acceptable professional standards.

    Reynolds' law license had been suspended since Feb. 27, 2006, for her failure to cooperate with the OLR in another matter.

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    Disciplinary Proceedings against Keith H.S. Peck

    On May 9, 2006, the Wisconsin Supreme Court publicly reprimanded Keith H.S. Peck, Honolulu, Hawaii, as discipline reciprocal to a public reprimand imposed against Peck's Hawaii law license by the Hawaii Supreme Court on May 26, 2005. Disciplinary Proceedings Against Peck, 2006 WI 42.

    The Hawaii public reprimand resulted from Peck's violation of the rules of professional conduct in a Hawaii matter in which Peck was found to have knowingly made a false statement of material fact or law to a third person while representing a client, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and used means that had no substantial purpose other than to embarrass, delay, or burden a third person while representing a client.

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    Disciplinary Proceedings against Donald J. Peterson

    On May 5, 2006, the Wisconsin Supreme Court suspended the law license of Donald J. Peterson, 51, Madison, for two years, effective immediately. The court also ordered Peterson to pay $26,237 in restitution to his former law firm and pay the costs of the disciplinary proceeding. Disciplinary Proceedings Against Peterson, 2006 WI 41.

    The court found that Peterson engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, contrary to SCR 20:8.4(c), by directing clients to make checks for legal fees payable to him instead of his law firm, by diverting more than $26,000 in fees belonging to his law firm for his own personal use, and by pawning his law firm's VCR. In addition, the court found that Peterson committed a criminal act reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, contrary to SCR 20:8.4(b), by using cocaine.

    The referee in the matter recommended an 18-month suspension of Peterson's license. However, even absent an appeal, the court concluded that more severe discipline was required and imposed the two-year suspension originally sought by the OLR.

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    Disciplinary Proceedings against Mark A. Phillips

    On May 12, 2006, the Wisconsin Supreme Court suspended the law license of Mark A. Phillips, Brookfield, for one year. Disciplinary Proceedings Against Mark A. Phillips, 2006 WI 43. The court also ordered that, within 30 days of the order, Phillips pay restitution to a client by satisfying two judgments the client had against him in the amounts of $148,511.37 and $28,571.35, plus interest. The court further ordered Phillips to pay the $9,911.79 cost of the disciplinary proceeding.

    The court adopted a referee's findings of fact and conclusions of law and determined that Phillips engaged in seven instances of misconduct in two separate matters. In the first matter, Phillips borrowed $20,000 from a client in 1998 and an additional $125,000 from the same client in 1999. Phillips twice violated SCR 20:1.8(a) in that: the terms of the loans were not fair and reasonable to the client; the terms were not transmitted in writing in a manner the client could reasonably understand; Phillips failed to give the client an opportunity to seek independent counsel; and Phillips failed to obtain the client's written consent to the transactions.

    Phillips also violated SCR 20:1.8(b) in that he used his knowledge of the client's finances to obtain the loans. Further, Phillips violated SCR 20:8.4(c) by failing to disclose to the client the extent of his financial distress and the fact that there was a substantial risk that Phillips would not repay the loans. Phillips also failed to close the client's father's estate in a timely manner and caused the federal estate tax return to be filed long after it was due, contrary to SCR 20:1.3. Finally, Phillips violated SCR 20:1.16(d) by failing to return the client's files for more than four months, despite repeated requests.

    In the second matter, Phillips failed to file timely state income tax returns for the years 1998 through 2001 and failed to pay state income taxes when due, in violation of supreme court decisions regulating the conduct of lawyers, contrary to SCR 20:8.4(f).

    Phillips appealed from the referee's report and recommendation for discipline but, after an independent review of the record, the court rejected Phillips' arguments. Top of page

    Disciplinary Proceedings against John F. Scanlan

    The Wisconsin Supreme Court suspended the law license of John F. Scanlan, formerly of Fish Creek, and now residing in Illinois, for six months effective June 7, 2006. Scanlan also was ordered to pay restitution. Disciplinary Proceedings Against Scanlan, 2006 WI 38.

    The suspension was based on multiple counts of misconduct involving nine client matters. The misconduct included failing to provide competent representation, contrary to SCR 20:1.1; neglecting a client matter, contrary to SCR 20:1.3; depositing client funds in a business account, contrary to former SCR 20:1.15(a); failing to deliver funds held in trust to a client, contrary to former SCR 20:1.15(b) and SCR 20:8.4(c); failing to keep trust account records, contrary to former SCR 20:1.15(e); failing to return an unearned fee, contrary to SCR 20:1.16(d); making unidentified and unauthorized transfers from his client trust account, contrary to SCR 20:8.4(c); failing to notify a client and the court of an administrative license suspension, contrary to SCR 22.26(1); and multiple failures to cooperate with the OLR's investigation, contrary to SCR 22.03(2) and (6), that resulted in a temporary license suspension. The court noted that mitigating factors included the absence of any prior discipline, Scanlan's remorse and ultimate cooperation, and Scanlan's mental health problems that are now being successfully treated.

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    Disciplinary Proceedings against Charles R. Koehn

    On May 19, 2006, the Wisconsin Supreme Court revoked the law license of Charles R. Koehn, Green Bay, for 91 incidents of misconduct in 19 different client matters. Disciplinary Proceedings Against Koehn, 2006 WI 50. The court also ordered Koehn to repay to the Wisconsin Lawyer's Fund for Client Protection the sum of $29,582.50 and to three clients the sums of $984, $800, and $1,500. The court further ordered Koehn to pay the $2,959.58 cost of the disciplinary proceeding.

    Koehn's misconduct included two instances of practicing law while suspended, contrary to SCR 10:03(6); 12 violations of SCR 22.03(2) and SCR 20:8.4(f) for failing to cooperate with the OLR's investigations; 15 incidents of failing to protect clients' interests upon termination, contrary to SCR 20:1.16(d); eight violations of SCR 22.03(6) for making misrepresentations to the OLR; five instances of willfully failing to cooperate with the OLR, contrary to SCR 22.03(6); 13 instances of lack of diligence in client matters, contrary to SCR 20:1.3; 13 instances of failing to communicate with clients, contrary to SCR 20:1.4(a); two violations of SCR 20:1.2(a) for failing to consult with and abide by clients' decisions; two violations of former SCR 20:1.15(a) for failing to hold clients' funds in trust; two violations of SCR 20:3.3(a)(1) for making false statements to tribunals; one instance of failing to give sufficient explanations to allow clients to make informed decisions, contrary to SCR 20:1.4(b); one instance of failing to provide competent representation, contrary to SCR 20:1.1; three violations of SCR 22.26(1) (a), (b), and (c) for failing to notify clients, courts, and parties' attorneys of his suspension for nonpayment of dues; one violation of SCR 40.15, the attorney's oath, for offensive personality; three violations of SCR 20:1.5(b) for failing to communicate to clients the basis or rate of his fee; one conflict of interest in violation of SCR 20:1.7(b), when the client's interests conflicted with Koehn's own pecuniary interest; two instances of dishonesty, contrary to SCR 20:8.4(c); one violation of SCR 20:8.4(d) for stating or implying the ability to improperly influence a government official; and four violations of SCR 22.04(1) for failing to cooperate with district committee investigations.

    The court deemed it unnecessary to recite the facts pertaining to all 19 client matters, stating that the referee's findings "demonstrate Attorney Koehn's flagrant and widespread infractions of the rules of professional conduct." Rather, the court's opinion described one client matter in detail as an example of Koehn's misconduct. In that matter, among other things, Koehn accepted an $8,000 retainer from a family, failed to hold the payment in trust, performed few, if any, services of value in three different family matters, failed to refund the unearned fee despite numerous requests, failed to act with reasonable diligence, failed to communicate, and failed to respond to the OLR's investigative requests. Additionally, Koehn told one family member, untruthfully, that he was having Christmas dinner with the prosecutor in one of the families' matters, that the prosecutor's brother, a judge, was also his brother-in-law, and that Koehn was "connected."

    Koehn had prior discipline. He received a private reprimand in 1991, had his license suspended for 60 days in 1997 (Disciplinary Proceedings Against Koehn, 208 Wis. 2d 128 (1997)), and received a public reprimand in 2000. Additionally, Koehn's license was temporarily suspended in 2005 for Koehn's failure to cooperate with the OLR, and the license remained suspended until the date of his revocation.

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    Disciplinary Proceedings against Lyle P. Schaller

    The Wisconsin Supreme Court suspended the law license of Lyle P. Schaller, Cashton, for two years, effective June 9, 2006. Schaller also was ordered to pay the $1,032.15 cost of the disciplinary proceeding. The court further ordered Schaller to pay restitution to his former law firm in the amount of $4,290.85 and to attend, during his suspension, continuing legal education courses approved by the OLR. Disciplinary Proceedings Against Schaller, 2006 WI 40.

    Schaller's misconduct consisted of converting to his own use monies that were delivered to his former law firm and failing to report the amount converted from his former law firm as income on his tax returns, in violation of SCR 20:8.4(c), which states, "[i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Schaller also practiced law on various occasions between Nov. 1, 2003 and Feb. 18, 2004, for at least 11 clients while his license was suspended for his failure to pay mandatory bar dues, contrary to SCR 10.03(6), and in violation of SCR 20:8.4(f), which states, "[i]t is professional misconduct for a lawyer to violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

    Schaller had no prior discipline.

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    Disciplinary Proceedings against Michael D. Mandelman

    On May 17, 2006, the Wisconsin Supreme Court suspended the law license of Michael D. Mandelman, Milwaukee, for nine months, commencing June 21, 2006, as discipline for professional misconduct related to representation of five clients, and for misconduct unrelated to his representation of clients. The court also ordered Mandelman to pay the full $37,088.08 cost of the disciplinary proceedings. Disciplinary Proceedings Against Mandelman, 2006 WI 45.

    In the first matter, Mandelman represented a client in a lawyer malpractice case and on a petition to reopen a custody case. Mandelman did not reduce to writing the contingent fee agreement in the malpractice case, in violation of SCR 20:1.5(c). In violation of SCR 20:1.3, Mandelman failed to file a petition to reopen the custody matter and failed to pursue the malpractice case in a timely manner. Mandelman violated SCR 20:1.8(h) by having the client sign, without the benefit of independent counsel, a prospective waiver of claims against Mandelman.

    In the second matter, Mandelman represented a client who was injured in a motorcycle accident. Mandelman violated SCR 20:1.3 by failing to pursue the client's claims in a timely manner. Mandelman failed to respond to certain of the client's requests for information, in violation of SCR 20:1.4(a).

    In a third matter, Mandelman was successor counsel in a client's injury case. Mandelman violated SCR 20:1.3 by failing to file in court a notice of substitution, which failure resulted in dismissal of the client's case. Mandelman was responsible for the violation of SCR 20:1.3 by reason of his own conduct and, under SCR 20:5.1(c)(2), based on the joint responsibility to represent the client as a partner in a law firm.

    In a fourth matter, Mandelman represented a client in an employment claim against the client's former employer based on alleged sexual harassment. Mandelman violated SCR 20:1.3 and SCR 20:5.1(a) by failing to make reasonable efforts to ensure that his firm had in effect measures giving reasonable assurance that all lawyers in the firm conformed to the Rules of Professional Conduct, by the firm's failure to file a response to the adverse party's answer and affirmative defenses, by failing to submit a rebuttal to the adverse party's response, and by failing to ensure that the client's witnesses telephoned an investigator for the Equal Rights Division.

    In a fifth matter, Mandelman represented a client in a personal injury case following her involvement in a multi-vehicle accident. Mandelman violated SCR 20:1.3 by failing to pursue the client's personal injury claim in a timely manner. Mandelman was responsible for the violation of SCR 20:1.3 by reason of his own conduct and, under SCR 20:5.1(c)(2), based on the joint responsibility to represent the client as a partner in a law firm.

    Unrelated to his representation of clients, Mandelman failed to file income tax returns and to pay income taxes when due, thus violating a standard of conduct for attorneys, contrary to SCR 20:8.4(f).

    Mandelman's prior discipline consisted of a 1990 one-year suspension, an 18-month suspension imposed in 1994, and a private reprimand issued in 1999.

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    Disciplinary Proceedings against Maureen B. Fitzgerald

    On June 2, 2006, the Wisconsin Supreme Court suspended the law license of Maureen B. Fitzgerald, Milwaukee, for 90 days, effective the date of the order. In addition, the court ordered that Fitzgerald pay the $6,844.07 cost of the disciplinary proceeding. Disciplinary Proceedings Against Fitzgerald, 2006 WI 58.

    Fitzgerald's suspension was based on six counts of misconduct relating to her representation of one client. In the fall of 1999, a woman retained Fitzgerald to represent her in connection with two automobile accidents. With regard to the second accident, Fitzgerald failed to reduce to writing the contingent fee agreement, in violation of SCR 20:1.5(c).

    The other drivers in both accidents were uninsured, and uninsured motorist coverage was available under the client's own insurance policy. The client's insurance company paid only one medical bill, in the amount of $159, on the client's behalf. The insurance company made inquiries to Fitzgerald regarding both claims but did not receive prompt replies and, therefore, closed out both files without a settlement. By failing to reply to the insurance company's inquiries, resulting in closure of both files without settlement, Fitzgerald violated SCR 20:1.3.

    Fitzgerald informed the client that the insurance company was willing to settle her claims for $5,000.22, in addition to the payment of the client's medical bills. In fact, no such offer had been made. By asserting to the client that such an offer had been made, and by failing to accurately inform the client that no offer had been made and that in fact the insurance company had closed both files without a settlement being reached, Fitzgerald violated SCR 20:1.4(a).

    To perpetuate the ruse that a settlement had been reached with the insurance company, Fitzgerald deposited personal funds into her business account and then transferred those funds into her trust account. By depositing personal funds into her trust account, Fitzgerald violated former SCR 20:1.15(a).

    Fitzgerald then sent the client a check for $3,333.48 from her trust account, representing the client's share of the alleged settlement proceeds. Fitzgerald also forwarded to the client a document purporting to release the adverse insurance company from further liability. Also, Fitzgerald offered to forego her fees in order to placate the client, who was unhappy about the length of time it took to obtain the settlement. By asserting to the client that the insurance company had made a settlement of her claims, by fabricating a release and forwarding it to the client, by offering to forego her fees in order to perpetuate the ruse that the insurance company had paid a settlement, and by forwarding to the client a check purporting to be a settlement of her claims, Fitzgerald violated SCR 20:8.4(c).

    During the course of the OLR's investigation of this matter, Fitzgerald advised OLR staff that the insurance company had agreed to extend the applicable statute of limitation. Fitzgerald also provided the OLR with a copy of the purported release of claims against the insurance company. Further, Fitzgerald failed to inform OLR staff that the funds sent to the client were Fitzgerald's personal funds. Finally, Fitzgerald informed OLR staff that the insurance company had paid all of the client's medical bills when further investigation revealed that Fitzgerald had paid the bills from her business account. By asserting to OLR staff that the insurance company had agreed to extend the applicable statute of limitation when there had been no such agreement, by providing OLR staff with the fabricated release, by failing to inform OLR staff that the funds sent to the client were her personal funds, and by failing to inform OLR staff that she had personally paid the client's medical bills, Fitzgerald violated SCR 22.03(6).

    The OLR sought a 60-day suspension. However, the referee recommended a 90-day suspension based on Fitzgerald's persistent dishonesty, even under oath. The court adopted the referee's recommendation.

    Fitzgerald's law license had been suspended since May 9, 2006, for her failure to cooperate with the OLR in other matters.

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    Reinstatement of Jenelle Glasbrenner

    On May 2, 2006, the Wisconsin Supreme Court reinstated the law license of Jenelle Glasbrenner and ordered her to pay the $2,168.55 cost of the reinstatement proceeding. Disciplinary Proceedings Against Glasbrenner, 2006 WI 35.

    On April 22, 2005, the court had suspended Glasbrenner's law license for six months for professional misconduct consisting of overbilling the State Public Defender for work she had performed. Disciplinary Proceedings Against Glasbrenner, 2005 WI 50.

    After a hearing on Glasbrenner's petition, a referee concluded, and the court later agreed, that Glasbrenner had met the standards for reinstatement. Based on the referee's recommendation, the court ordered the reinstatement subject to the condition that Glasbrenner keep formal, accurate, and contemporaneous accounting of her time to be entered into her firm's billing system and further, that the OLR, for two years following the reinstatement, supervise her in that regard and require her to report to the OLR as requested with respect to her billing practices.

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