Wisconsin Lawyer: Private Reprimand Summaries:

State Bar of Wisconsin

Sign In
    Wisconsin LawyerWisconsin Lawyer

News & Pubs Search

Advanced

    Private Reprimand Summaries

    The Office of Lawyer Regulation, 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 Office of Lawyer Regulation has offices located 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.


    Share This:

    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 11, November 2008

    Private Reprimand Summaries

    The Office of Lawyer Regulation, 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 Office of Lawyer Regulation has offices located 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.

    Failure to Consult with Client, Keep Client Informed, and Timely Return Case File; Conflict of Interest

    Violations of SCR 20:1.2(a), 20:1.4(a), 20:1.7(a), and 20:1.16(d)

    An attorney represented a building contractor as the plaintiff in a suit to recover an unpaid debt. The defendant brought a third-party defendant into the suit. Without consulting the contractor or obtaining the contractor’s written consent, the attorney also represented the adverse third-party defendant in the suit and in matters other than the suit commenced by the contractor, in violation of former SCR 20:1.7(a).

    The defendant moved for a change of venue and to have the attorney removed because of the apparent conflict of interest. Without objection from the attorney, the change-of-venue motion was granted. The attorney successfully argued for consolidating four cases involving his two clients. Before his eventual withdrawal as the contractor’s counsel, the attorney signed a stipulation on behalf of adverse parties. The attorney did not explain to the contractor the ramifications of any of these developments, nor did he consult with the contactor about them, contrary to SCR 20:1.4(b) and former 20:1.2(a).

    Following the attorney’s withdrawal from the representation, the contractor and successor counsel made numerous requests for the case file, but the attorney delayed in turning over the file for three months, in violation of former SCR 20:1.16(d).

    The attorney had no prior discipline.

    Top of Page

    Convictions of Battery and Disorderly Conduct

    Violation of SCR 20:8.4(b)

    An attorney was arrested and later charged with battery and disorderly conduct in connection with a domestic dispute. The attorney entered into a deferred prosecution agreement, one of the conditions of which was to have no contact with the victim. The attorney later violated this condition by contacting the victim. The attorney was charged with misdemeanor bail jumping, the deferred prosecution agreement was revoked, and the attorney was convicted of the battery and disorderly conduct charges and sentenced to 18 months of probation.

    By engaging in conduct leading to a criminal conviction on one count of misdemeanor battery and one count of misdemeanor disorderly conduct, the attorney violated SCR 20:8.4(b) (unchanged by amended SCR 20:8.4, effective July 1, 2007), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

    Top of Page

    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    An attorney pleaded guilty to one count of carrying a concealed weapon, a Class A misdemeanor, in violation of Wis. Stat. section 941.23. The attorney was sentenced to two months in the local jail with Huber privileges.

    By engaging in acts that led to a conviction of one count of carrying a concealed weapon, contrary to section 941.23, the attorney violated SCR 20:8.4(b), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

    The attorney had no prior discipline.

    Top of Page

    Failure to Communicate; Lack of Diligence

    Violations of Former SCR 20:1.4(a), and 20:1.4(b)

    In the first of two matters, an attorney representing a client in a worker’s compensation matter provided minimal information to the client about her case over four years’ time and failed to respond promptly to numerous telephone calls from the client. The attorney also failed to provide any detailed explanation of the process by which worker’s compensation cases were to be handled and failed to provide any written explanation discussing the relative merits of the client’s case before making a settlement recommendation. The attorney had not documented any oral discussions he had with the client to demonstrate that he had communicated with the client in a manner that would enable her to make informed decisions regarding the representation.

    By failing to communicate in writing with the client over an extended time regarding any aspect of her claim, and by failing to respond to the client’s numerous telephone calls and requests for information regarding her claim, the attorney violated former SCR 20:1.4(a) (effective before July 1, 2007). By failing to explain matters regarding the worker’s compensation claim sufficiently to enable the client to make informed decisions regarding her claim, failing to document any discussions with the client regarding the process by which worker’s compensation claims are handled, and failing to discuss the relative merits of the client’s case or any other aspect of her claim, the attorney violated SCR 20:1.4(b).

    In a second matter, a client hired the attorney to represent him in a worker’s compensation matter. The attorney litigated the claim, but the claim was denied by the administrative law judge (ALJ). The attorney appealed the matter to the Wisconsin Labor and Industry Review Commission (LIRC). LIRC affirmed the ALJ’s findings and order.

    The attorney met with the client shortly after LIRC issued its decision. The client said he told the attorney that he wanted to file an appeal, and the attorney agreed to file an appeal. Although the attorney denied that he agreed to file an appeal and said he only agreed to research whether an appeal was appropriate, the attorney failed to document the discussions regarding an appeal, including whether an appeal was appropriate or whether he intended to file an appeal, and ultimately the attorney did not file an appeal. By failing to file an appeal in a worker’s compensation matter, or otherwise document discussions with the client regarding the appeal, including whether an appeal was appropriate or whether he intended to file an appeal, the attorney violated SCR 20:1.4(b).

    The client sent numerous emails to the attorney regarding the appeal and left many telephone messages. The attorney failed to respond to the client’s emails or telephone calls. By failing to respond to the client’s email and telephone messages regarding the status of his appeal, the attorney violated former SCR 20:1.4(a) (effective before July 1, 2007).

    The attorney had one prior private reprimand, issued subsequent to the events described.

    Top of Page

    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    An attorney was convicted of one count of misdemeanor violation of a harassment injunction order. Over the course of two days, the attorney called the petitioner at least 30 times, leaving messages on almost every call. The attorney’s sentence included a fine. The attorney self-reported his conviction as required under SCR 21.15(5).

    By his acts, the attorney violated SCR 20:8.4(b), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

    The attorney had no prior discipline.

    Top of Page

    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    An attorney was convicted of one count of misdemeanor third-offense operating while under the influence. The attorney’s sentence included a fine, license revocation for 30 months, a court-ordered alcohol assessment, and 100 days of confinement in the house of correction with Huber work-release privileges. The attorney self-reported his conviction as required under SCR 21.15(5).

    By his acts, the attorney violated SCR 20:8.4(b), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

    The attorney had no prior discipline.

    Top of Page

    Ex Parte Communication; Knowing Violation of Court Order

    Violation of SCR 20:3.5(a) and (b) and 20:3.4(c)

    The attorney’s misconduct occurred in two matters. In the first, the attorney represented the father in a child placement matter. After a trial, the circuit court judge awarded sole custody and primary placement of the children to their mother. The attorney requested a stay pending appeal, but the court of appeals denied the request for stay.

    The attorney wrote to the chief judge of the circuit court, criticizing the presiding judge’s decision in the custody case and asserting that the presiding judge was a danger to families. The attorney asked the chief judge to reassign the presiding judge from family court. The attorney did not send copies of the letter to the other attorneys involved in the case. Two days later, the attorney again sent the same letter to the chief judge and this time copied the other attorneys involved in the case. The attorney violated SCR 20:3.5(a) and (b) when he wrote to the chief judge without providing copies of the letter to the other attorneys in the case. 

    In a second matter, two men, X and Y, had a history of suing each other. Eventually X filed a pro se lawsuit seeking damages for various acts by Y. The circuit court dismissed X’s lawsuit and permanently enjoined X from filing any further lawsuit against Y arising from the same facts or circumstances. X hired the attorney to represent him on the issue of costs and fees and to file an appeal, which ended in a stipulation.

    At X’s request, the attorney filed a new lawsuit against Y to seek to recover past attorney fees. The attorney’s complaint referred to some of the same events that formed the basis for X’s prior lawsuit. Y’s attorney wrote to the attorney and reminded him of the court’s injunction against X. The attorney slightly revised the complaint but continued to seek damages based on certain events. The court found that X had violated the injunction and that the complaint and amended complaint were frivolous. The court ordered the attorney and X jointly and severally responsible for attorney fees. The attorney paid the portion of the fees for which he was found jointly and severally liable.

    The attorney violated SCR 20:3.4(c) when he continued to prosecute a lawsuit that violated a prior, permanent injunction, after adverse counsel reminded the attorney that the lawsuit violated the injunction.

    Top of Page

    Failure to Hold Disputed Funds in Trust, Deposit Funds in Income- generating Account, and Provide a Full Accounting

    Violations of SCR 20:1.15(b)(1), 20:1.15(d)(3), 20:1.15(c)(2), and 20:1.15(d)(2)

    An attorney represented a client in a civil action against the client’s former employer. The client claimed that he was entitled to certain fees that he had received after leaving the employer. The former employer also claimed entitlement to a significant portion of the fees, based on two separate agreements with the employee. While the civil action was pending, the client deposited more than $200,000 in disputed funds with the circuit court. The clerk of circuit court ultimately returned those funds to the client via cashier’s check because the civil action had been dismissed without adjudication as to the ownership of those funds.

    Shortly thereafter, the client gave the attorney the $200,000-plus cashier’s check. The attorney placed the cashier’s check in a locked desk drawer and held it there for approximately five months. If the check had been deposited in an income-generating trust account, it could have generated an additional $3,400 in interest. Approximately five months after receiving the cashier’s check, the lawyer deposited it in a money market account. The account was titled as a law office account, and its tax identification number (TIN) was the lawyer’s TIN. Although the money market account was a demand account that provided the attorney with check-writing capabilities, the attorney did not file an overdraft reporting agreement with either the bank or the OLR, as required by SCR 20:1.15(h).

    Counsel for the employer subsequently asked the attorney to disburse the funds and provide an accounting that included identification of the file names, the amount of the fees and expenses, and the interest earned. The attorney contended that SCR 20:1.15(d) was not applicable to the circumstances and indicated that an expert opinion was being sought. While the attorney ultimately provided opposing counsel with an accounting, the attorney waited approximately six months to do so.

    By holding a $200,000-plus cashier’s check in a locked, law office desk drawer for approximately five months, when the ownership of those funds was disputed between a client and the client’s former employer, the attorney failed to hold in trust client funds that were the subject of a dispute, in violation of SCR 20:1.15(b)(1) and 20:1.15(d)(3) (effective July 1, 2004).

    By holding $200,000 in an account identified as a law office account for approximately six months, when the ownership of those funds was disputed between a client and the client’s former employer, the attorney failed to hold in trust client funds that were the subject of a dispute, in violation of SCR 20:1.15(b)(1) and 20:1.15(d)(3) (effective July 1, 2004).

    By failing to deposit the $200,000-plus cashier’s check into an interest-bearing account for about five months, the attorney failed to deposit client funds into an interest-bearing trust account or an income-generating investment vehicle for the particular client or client’s matter, the interest on which would be paid to the client, in violation of SCR 20:1.15(c)(2) (effective July 1, 2004).

    By failing to promptly provide the client’s former employer with a full, written accounting regarding the money, pursuant to opposing counsel’s request for such an accounting, the attorney failed to promptly render a full written accounting regarding the property to third parties having an ownership interest in the property that was identified in at least two contracts, in violation of SCR 20:1.15(d)(2) (effective July 1, 2004).

    The attorney had no prior discipline.

    Top of Page

    Conflict of Interest; Failure to Give Prompt Notice and Distribute Proceeds; Premature Disbursement; and Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

    Violations of Former SCR 20:1.7(b), 20:1.15(d)(1), 20:1.15(e)(5)a., and 20:8.4(c)

    An attorney represented two clients who were injured when the vehicle they were riding in was hit by a second vehicle. The attorney violated former SCR 20:1.7(b) by representing both clients, who had potentially adverse claims, without consulting or obtaining written consent from each client.

    The attorney successfully negotiated separate settlements for each client. When the insurance checks arrived, one client came into the attorney’s office and stated that the other client remained in the car because he was sick. The attorney gave the insurance check and settlement release to the client who was in the office, and then the attorney observed from his office window as the paperwork was delivered to the client in the car. The signed paperwork was returned to the attorney, who notarized the settlement release stating that the client’s signature had been witnessed, subscribed, and sworn to before him, a statement that was not true and violated SCR 20:8.4(c).

    The client who returned to the office expressed an immediate need for the net settlement checks. The attorney, with the understanding that the checks were not to be cashed until the date on the checks, prepared and gave to the client two post-dated checks drawn on his trust account, in violation of SCR 20:1.15(e)(5)a., which states, “A lawyer shall not disburse funds from any trust account unless the deposit from which those funds will be disbursed has cleared, and the funds are available for disbursement.”

    Subsequently, the client who had remained in the car claimed he never received a net settlement check after he endorsed the insurance check and that he did not consent to having his check delivered to another. By delivering the check to someone other than the intended client, the attorney violated SCR 20:1.15(d)(1), which requires a lawyer, on receipt of funds, to promptly deliver to the client any funds the client is entitled to receive.

    The attorney had no prior discipline.

    Top of Page

    Providing Legal Advice While License Suspended

    Violation of SCR 31.10(1), enforceable through 20:8.4(f)

    While an attorney was working as an associate in a law office, his law license was administratively suspended pursuant to SCR 31.10(1) for noncompliance with Wisconsin mandatory continuing legal education requirements. The attorney continued to provide legal advice to clients while his license was under suspension. SCR 31.10(1) provides, in relevant part, that “[a] lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.”

    By practicing law while his law license was suspended, the attorney violated SCR 31.10(1), as enforceable through SCR 20:8.4(f), which states, in relevant part, that, “It is professional misconduct for a lawyer to … violate a … supreme court rule … regulating the conduct of lawyers….” The attorney had one previous public reprimand.

    Top of Page

    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    An attorney pleaded no contest to one count of battery, domestic abuse incident, contrary to Wis. Stat. sections 940.19(1) and 968.075(1)(a), a Class A misdemeanor. The attorney was sentenced to one year of probation, sentence withheld, with the following conditions: 1) payment of supervisory fees to the Department of Corrections; 2) participation in and successful completion of all counseling and treatment recommendations as deemed appropriate by the agent; and 3) follow-up with any domestic abuse recommendations made by the counselor. The attorney also was ordered to pay court costs totaling $143. The attorney self-reported the conviction to the OLR.

    By engaging in acts leading to a conviction of one count of battery, domestic abuse incident, the attorney violated SCR 20:8.4(b), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”

    Top of Page

    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    An attorney was convicted of one count of misdemeanor third-offense operating while under the influence and one count of misdemeanor third-offense operating with PAC.08. The attorney’s sentence included a fine, jail for three months with Huber privileges, license revocation for 30 months, and use of an ignition interlock for two years. The attorney self-reported his conviction as required under SCR 21.15(5).

    By his acts, the attorney violated SCR 20:8.4(b), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” 

    The attorney had no prior discipline.

    Top of Page

    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    An attorney was convicted of one count of misdemeanor second-offense operating while under the influence. Field sobriety tests conducted by an officer who responded to the scene showed that the lawyer was intoxicated, and a breath test indicated that the lawyer’s blood alcohol concentration was 0.20.

    The lawyer pleaded guilty to the misdemeanor charge, and the court sentenced the attorney to 60 days in jail with Huber privileges, revoked his driver’s license for 12 months, fined him $894, and ordered him to undergo an alcohol abuse assessment. Although the attorney did not report his conviction to the OLR and the clerk of the supreme court within five days as required by SCR 21.15(5), he credibly explained that the two-week delay in reporting resulted from his receipt of erroneous advice from his counsel.

    By his act of driving while intoxicated, the attorney violated SCR 20:8.4(b), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

    Top of Page

    Failure to Hold Unearned Fees in Trust and Maintain Complete Records; Commingling; Allowing Prohibited Transactions in Trust Account

    Violations of SCR 20:1.15(b)(3), (b)(4), (e)(4)c., d., e., and (f)(1)a., d., e.

    An attorney with offices in two communities maintained a trust account in each of those offices and had a longstanding practice of combining the balances in the two trust accounts in order to determine the amount that could be withdrawn for fees and the amount that needed to remain in trust. The attorney would normally withdraw less than the firm was entitled to for fees, but the trust account records failed to adequately track the amount of earned fees that remained in trust for each client. The fees were routinely withdrawn from just one of those trust accounts (TA 1). In addition, beginning in the 1990s, the firm accepted credit card payments for both advanced fees and earned fees, and all of those payments were deposited to TA 1. The rules did not explicitly prohibit credit card and other electronic transfers until July 1, 2004.

    In June 2006, a woman hired the lawyer’s office regarding a divorce and paid a $4,500 advanced fee by credit card, which was deposited directly to TA 1. Shortly thereafter, the attorney transferred $4,000 of those funds to the firm’s business account via three Internet transactions, despite the fact that the firm had not yet provided $4,000 in services in that matter. Those transfers were, however, in keeping with the firm’s practice of combining the balances in its two trust accounts and disbursing all earned fees from TA 1. Based on subsequent analysis of the activity in both trust accounts, the OLR determined that the attorney had held $3,500 in earned fees relating to a probate matter in the firm’s second trust account for nearly a year, but that even with those earned fees in trust, there were inadequate funds in the two trust accounts to cover the total that needed to be held in trust for several clients.

    In addition, between December 2004 and July 2006, the attorney authorized six Internet transfers to the trust account, totaling $4,646.75, and 31 Internet transfers from the trust account for fees, totaling $29,701.18. However, the attorney failed to keep any record as to whose funds were included in each of the Internet transfers. The attorney also accepted 47 credit card payments, totaling $33,563.94, all of which were deposited to TA 1. By accepting those credit card payments, the attorney allowed a third party, the credit card vendor, to make 47 electronic withdrawals from the trust account to pay a total of $1,586.75 in credit card surcharges. While the attorney indicated that the surcharges were taken into account when partial withdrawals were made for earned fees, there is no record as to how the fees were reduced by those credit card charges.

    When reviewing the attorney’s trust account records, the OLR discovered that the transaction registers failed to identify deposit sources and the client to whom each deposit related. The OLR also discovered that the attorney had not maintained duplicate deposit slips for TA 1 after November 2005, and that duplicate deposit slips had never been maintained for the second trust account. The OLR further ascertained that the attorney regularly failed to identify the purpose of each disbursement on the memo line of the related check, particularly the checks that were disbursed to the law firm.

    The attorney was privately reprimanded and required to attend an OLR trust account management seminar, based on the following violations:

    1) Disbursing $5,770.13 in unearned fees to the firm (SCR 20:1.15(b)(4));

    2) Depositing earned fees to a trust account via credit card and failing to disburse fees from trust as they were earned (SCR 20:1.15(b)(3));

    3) Transferring funds to and from a trust account via the Internet (SCR 20:1.15(e)(4)c.);

    4) Allowing credit card payments and surcharges to be deposited to and electronically withdrawn from a trust account (SCR 20:1.15(e)(4)e., 20:1.15(e)(4)d.); and

    5) Failing to maintain adequate information in transaction registers and checks and failing to maintain duplicate deposit slips (SCR 20:1.15(f)(1)a., d., e.).

    There was no evidence of harm to any client in connection with these violations, and the attorney had no prior discipline.

    Top of Page

    Lack of Diligence; Failure to Promptly Deliver Funds; Dishonesty in Probate

    Violations of SCR 20:1.3, former 20:1.15(d), and 20:8.4(c)

    A woman hired an attorney to assist in the administration and termination of her deceased mother’s trust. The attorney advised the client regarding the desirability of the attorney keeping the assets of the trust in his trust account so he could make the final distributions after completing the taxes.

    The client’s brother called the attorney to inquire as to whether the trust’s tax returns were completed and was told they were filed and nothing was owed. In fact, the taxes had not yet been filed.

    That same day, the attorney indicated to the brother that he would be sending the trust assets to the client, per the client’s wishes. The attorney did not do so until several months later, following several phone calls from the brother and the client and after the client had hired successor counsel to complete the administration and termination of the trust.

    The attorney admitted that he “made a number of promises … that work would be completed sooner than occurred.” The attorney asserted that during a two-month period during the representation he was suffering from depression but that he subsequently received treatment for the problem.

    By failing to timely complete the administration and termination of the trust, despite repeated assurances that he would do so, the attorney violated SCR 20:1.3.

    By failing to promptly turn over the trust assets, the attorney violated former SCR 20:1.15(d)(1) (effective before July 1, 2007).

    By telling the brother he had filed the tax returns when he had not done so, the attorney violated SCR 20:8.4(c).

    The attorney had no prior discipline.

    Top of Page

    Failure to Return Unearned Portion of Fee and to Hold Unearned Fees in Trust

    Violations of Former SCR 20:1.5(a), 20:1.16(d), and 20:1.15(b)(4)

    An attorney was hired to represent two clients in unrelated legal matters pending in federal court. The attorney’s written fee agreement with each client required the client to pay the attorney a “nonrefundable flat fee” of $65,000 and $90,000, respectively, plus advance payments toward the costs of the litigation. The clients paid the attorney’s firm $50,000 and $60,000, respectively, toward the attorney’s fee.

    In each case the client became dissatisfied and terminated the attorney’s representation within six weeks of hiring the attorney. After the termination, the attorney refused to refund any portion of the fees paid by the clients, asserting that the fees were not refundable unless the attorney had been terminated for cause or the attorney terminated the representation. Taking into consideration the reasonable value of the work the attorney’s firm actually performed on behalf of the clients, the attorney’s firm earned no more than $45,050 of the $60,000 paid on behalf of the first client and no more than $7,155 of the $50,000 paid by the other client.

    By failing to refund the unearned portion of the nonrefundable flat fees paid to his firm by the clients after the clients terminated the representation, when: 1) the attorney’s firm had not performed sufficient services or provided sufficient benefit to the clients to earn more than $45,050 of the $60,000 paid on behalf of the first client and more than $7,155 of the $50,000 paid by the other client; and, 2) no other facts or circumstances justified the firm’s retention of the portion of the fees in excess of the value of the services actually rendered to the clients, the attorney violated former SCR 20:1.5(a) and 20:1.16(d) (both effective before July 1, 2007).

    By disbursing funds from his trust account to himself and an investigator before he had received a signed fee agreement from the first client, and, therefore, without the client’s authorization to disperse the funds, the attorney violated former SCR 20:1.15(b)(4) (effective before July 1, 2007).

    The attorney had no prior discipline.

    As a prior condition of the imposition of the private reprimand, the attorney refunded $14,950 and $42,845 to his clients.  

    Top of Page




To view or add comment, Login