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    Lawyer Discipline

    The Office of Lawyer Regulation (OLR), 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 lawyers. The OLR has offices at 110 E. Main St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941. The full text of items summarized in this column can be viewed at www.wicourts.gov/olr.


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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 10, October 2008

    Lawyer Discipline

    The Office of Lawyer Regulation (OLR), 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 lawyers. The OLR has offices at 110 E. Main St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941. The full text of items summarized in this column can be viewed at www.wicourts.gov/olr.

    Disciplinary proceeding against Michael Swensen

    On July 31, 2008, the Wisconsin Supreme Court revoked the Wisconsin law license of Michael F. Swensen, Delano, Minn., as discipline reciprocal to an order by the Minnesota Supreme Court on Nov. 15, 2007, disbarring Swensen's license to practice law in Minnesota. Swensen also failed to notify the Wisconsin Office of Lawyer Regulation (OLR) of his Minnesota suspension within 20 days of that suspension, contrary to SCR 22.22(1). Disciplinary Proceedings Against Swensen, 2008 WI 113.

    The Minnesota suspension arose out of Swensen's violation of Minnesota Rules of Professional Conduct and resulted from conduct that included the conversion of rental payments and sale proceeds due to a client; inducing a client to transfer the client's property interests to Swensen's spouse; making false statements to a client and a third party; falsely drafting, notarizing, and signing documents; and engaging in business transactions with a client on unreasonable and undisclosed terms without advising the client in writing to seek independent counsel and without obtaining the client's written consent to the transactions.

    Swensen had no prior discipline in Wisconsin.

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    Disciplinary proceeding against Eric L. Crandall

    On July 31, 2008, the Wisconsin Supreme Court suspended the Wisconsin law license of Eric L. Crandall, New Richmond, for 30 days, effective Sept. 2, 2008, as discipline reciprocal to a Dec. 10, 2007, order of the Minnesota Supreme Court, suspending Crandall's Minnesota law license for 30 days. Crandall also failed to timely notify Wisconsin's OLR of his Minnesota suspension, contrary to SCR 22.22(1). Disciplinary Proceedings Against Crandall, 2008 WI 112.

    The Minnesota suspension resulted from Crandall's failure to act with diligence and promptness in representing a client, failing to communicate with clients, engaging in dishonesty or misrepresentation, and failing to cooperate with the Minnesota disciplinary investigation.

    In 2006, Crandall's Wisconsin law license was suspended for three months reciprocal to discipline imposed in Minnesota, and in 2008 the Wisconsin Supreme Court publicly reprimanded Crandall.

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    Public reprimand of Jeffrey C. Mochalski

    The OLR and Jeffrey C. Mochalski, La Crosse, 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 Aug. 1, 2008, in accordance with SCR 22.09(3). The public reprimand stemmed from a single matter investigated by the OLR.

    In March 2004, an individual hired Mochalski to represent him in a potential medical malpractice case. The client had suffered a foot injury, but the radiologists who reviewed the x-rays purportedly misdiagnosed the injury on two separate occasions. Months passed before the client was properly diagnosed and underwent surgery. Because of the age of the injury, the surgery was more extensive than a normal procedure would have been, and the client's gait was permanently altered. The negligence claim originated in April 2003, and the radiologists' group practice had sought previously to settle with the client, who in turn hired Mochalski to advise him regarding a potential settlement.

    From March 2004 until February 2006, Mochalski worked on the case, primarily focusing on issues associated with damages, including impairment and future medical expenses. While he focused on damage issues, Mochalski insufficiently explored settlement options, undertook no discovery, and ultimately failed to advance the client's interests for more than two years. Thereafter, Mochalski suffered personal and financial problems, and he failed to file a malpractice lawsuit before the statute of limitation expired or to otherwise protect his client's interests. In October 2006, Mochalski wrote to the client and admitted that he had failed to file a lawsuit on the client's behalf within the applicable statute of limitation and had not protected his interests. In failing to prosecute the client's cause of action from March 2004 until October 2006 and otherwise failing to take sufficient steps to advance and protect the client's interests, resulting in the loss of a negligence claim, the loss of a potential settlement, and other harm to the client's interests, Mochalski violated SCR 20:1.3, which states, "A lawyer shall act with reasonable diligence and promptness in representing a client."

    During the time that he represented the client, from March 2004 until October 2006, Mochalski communicated with the client infrequently. He spoke with the client by telephone in April 2004 and wrote to the client on two occasions, in October 2005 and February 2006. The last time Mochalski communicated with the client was in October 2006 when he informed the client that he had failed to file a lawsuit in a timely fashion or otherwise protect the client's interests. Mochalski failed to respond to repeated attempts to discuss the progress of the case. By failing to communicate with the client regarding the case for extended periods and failing to respond to repeated requests for information, Mochalski violated former SCR 20:1.4(a) (effective before July 1, 2007), which stated, "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

    In October 2006, when Mochalski informed the client that he had failed to file a lawsuit on his behalf, Mochalski also told the client that he had filed for voluntary Chapter 7 bankruptcy. Mochalski failed to disclose to the client that Mochalski had listed the client as an unsecured creditor on Mochalski's bankruptcy schedules with a potential unsecured claim of $30,000, the value of the client's potential claim against Mochalski for failing to appropriately handle his malpractice claim. Moreover, Mochalski failed to advise the client of the consequences associated with the bankruptcy filing, nor did Mochalski advise the client that he had taken action during his representation that was potentially adverse to the client's interests and that this action had been taken without the client's consent. By filing, without prior notice to the client and without the client's consent, a bankruptcy petition that identified the client as an unsecured creditor having a potential unsecured claim of $30,000 against Mochalski for failing to appropriately handle his medical malpractice claim, Mochalski violated former SCR 20:1.7(b) (effective before July 1, 2007), which stated, in relevant part, "A lawyer shall not represent a client if the representation of that client may be materially limited … by the lawyer's own interests, unless … 1) the lawyer reasonably believes the representation will not be adversely affected; and 2) the client consents in writing after consultation…."

    Mochalski has no prior discipline.

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    Public reprimand of Roger G. Merry

    The OLR and Roger G. Merry, Monroe, 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 Aug. 12, 2008, in accordance with SCR 22.09(3).

    Merry represented the husband as the petitioner in a divorce. Merry went to the wife's place of work to personally serve the divorce petition. On learning that the wife was not present, Merry gave the divorce petition to one of the wife's coworkers and asked that person to give the divorce papers to the wife, which was done. The applicable statute did not allow for service in this manner. Merry later filed in circuit court an affidavit of service in which he stated that he had "personally hand served" the divorce petition on the wife, which was not true. Merry thereby made a false statement of fact to a tribunal, contrary to SCR 20:3.3(a)(1); offered evidence that he knew to be false, contrary to SCR 20:3.3(a)(3); and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, contrary to SCR 20:8.4(c).

    Merry had previously received two private reprimands and two public reprimands for unrelated misconduct.

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    Reinstatement of John F. Scanlan

    On Aug. 19, 2008, the supreme court reinstated the law license of John F. Scanlan, with conditions. Disciplinary Proceedings Against Scanlan, 2008 WI 116.

    Scanlan's Wisconsin law license had been suspended for six months, effective June 7, 2006, as a result of misconduct that occurred during 2000 and 2002 with respect to nine client matters. By 2006, Scanlan was practicing law in Illinois, and he continued to do so until reciprocal discipline was imposed in that state. Reinstatement of Scanlan's Wisconsin license is required for Scanlan to be reinstated in Illinois, where he intends to practice.

    Scanlan's reinstatement was conditioned on the Wisconsin Supreme Court's receipt of a supplemental report from a treating psychiatrist or psychologist offering the opinion that it is safe and appropriate for Scanlan to resume the practice of law and delineating the counseling, treatment, and medications that the treating health professional believes are reasonably necessary for Scanlan to continue the practice of law. On Aug. 27, 2008, the court found that Scanlan had satisfied this condition, and the court reinstated his license. Scanlan's trust account practices and medications will be monitored quarterly by the OLR for one year.

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    Hearing to reinstate Gary R. George

    On Monday, Dec. 8 at 9 a.m., a public hearing will be held before referee James Winiarski in a hearing room at the Milwaukee State Office Building, 819 N. 6th Street, Milwaukee, on the petition of Gary R. George, Grafton, to reinstate his Wisconsin law license. Any interested person may appear at the hearing and be heard in support of, or in opposition to, the petition for reinstatement.

    In Disciplinary Proceedings Against George, 2008 WI 21, 746 N.W.2d 236, the Wisconsin Supreme Court suspended George's Wisconsin law license for four years and three months, retroactive to April 1, 2004, the effective date of a previous summary suspension ordered by the court, based on George's entering a guilty plea to conspiracy to commit offenses involving federal program funds. The court found that because at the time of his misconduct George was acting not only as an attorney but also as an elected official, the misconduct "not only involved dishonesty, it violated the public's trust and served to undermine the public's confidence in its elected officials."

    To be reinstated, George must substantiate by clear, satisfactory, and convincing evidence that he has the moral character to practice law in Wisconsin; his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest; all of his representations in his reinstatement petition are substantiated; and he has complied fully with the terms of the order of suspension or revocation and with SCR 22.26.

    Relevant information may be provided to or obtained from OLR investigator Sarah Peterson, 110 E. Main St., Suite 315, Madison, WI 53703, toll-free (877) 315-6941; or retained counsel Thomas J. Basting, P.O. Box 1766, Madison, WI 53701-1766.

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