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    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.


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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 5, May 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.

    Incompetent Representation; Improper Termination of Representation

    Violations of SCR 20:1.1 and former 20:1.16

    A lawyer represented a married couple in a foreclosure lawsuit filed by their mortgage holder. The lawyer filed an answer and raised affirmative defenses. The mortgage holder subsequently filed a motion for summary judgment against the couple.

    Wisconsin Rule of Civil Procedure section 802.08(3) requires that when a party files a motion for summary judgment, the adverse party must submit a response setting forth specific facts showing that there is a genuine issue for trial. The lawyer for the couple did not, however, file a response to the summary judgment motion because he erroneously believed that his clients' response could be presented through their testimony and affirmative defenses. The court awarded a default summary judgment against the couple because their lawyer did not respond to the motion for summary judgment.

    Because of his error, the lawyer refunded the entire fee that the couple had paid to him. The lawyer believed that his representation was completed at that point. However, the lawyer failed to inform the couple of the possible option under section 806.07(1) and (2) of seeking reconsideration of the summary judgment decision.

    By failing to review the applicable statute addressing summary judgment procedure and by failing to file a timely response to the summary judgment motion, the lawyer failed to provide competent representation as required by SCR 20:1.1. By failing to inform the couple of the possible option of seeking reconsideration of the summary judgment decision, the lawyer violated former SCR 20:1.16(d) (effective before July 1, 2007), which required a lawyer, on termination of representation, to take steps to the extent reasonably practicable to protect a client's interests.

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    Criminal Traffic Conviction

    Violations of SCR 20:8.4(b), 20:8.4(f), 21.15(5), and 10.03(2)

    An attorney licensed in Wisconsin but now based in another jurisdiction engaged in conduct leading to a criminal conviction in that other jurisdiction of second-offense operating while intoxicated, contrary to 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 failed to timely report his conviction to the Office of Lawyer Regulation (OLR) and the clerk of the supreme court, contrary to SCR 21.15(5), which is enforceable under the Rules of Professional Conduct via SCR 20:8.4(f). After moving from Wisconsin, the attorney failed to provide his new address to the State Bar of Wisconsin, contrary to SCR 10.03(2) and 20:8.4(f). The attorney previously was publicly reprimanded for unrelated misconduct.

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    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    In February 2007, an attorney was convicted of one count of misdemeanor criminal damage to property and one count of misdemeanor disorderly conduct. The conviction stemmed from an altercation occurring at the attorney's home the previous year. The attorney was sentenced to one year of probation, sentence withheld, with the following conditions: performing 100 hours of community service; undergoing counseling; and paying court costs. The attorney 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."

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    Conduct Involving Misrepresentation

    Violation of SCR 20:8.4(c)

    An attorney who was employed by a professional legal association attained membership in a rival association by misrepresenting the nature of his legal practice. The attorney attained membership in the rival association for two consecutive years and attended two annual conventions sponsored by the rival association. While attending the second annual convention, members of the rival association approached the attorney, who made misrepresentations to them relating to the nature of his practice.

    The attorney twice violated SCR 20:8.4(c) when he made misrepresentations relating to the nature of his legal practice on the membership applications of the rival association in successive years. The attorney committed a third violation of SCR 20:8.4(c) when he made misrepresentations to the members of the rival association at the convention. SCR 20:8.4(c) prohibits attorneys from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

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    Lack of Diligence and Communication

    Violation of SCR 20:1.3 and 20:1.4

    An attorney received an informal reprimand in the state where he practiced law for failing to diligently pursue a defense on behalf of his client and failing to communicate with his client. He did not take steps to ensure a trial took place before the client remained in jail for longer than the maximum possible punishment the client could have been sentenced to at trial, did not consult with her family about her mental condition and defense, and never visited her to discuss her case while she was in jail.

    In Wisconsin, this conduct violates SCR 20:1.3 and 20:1.4. Comparable discipline in Wisconsin is a private reprimand; therefore, a referee imposed a private reprimand pursuant to SCR 22.09.

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    Failure to Give Prompt Notice and Distribute Settlement Proceeds

    Violation of former SCR 20:1.15(d)(1)

    An attorney represented a client in a personal injury matter relating to a motor vehicle accident in 2004. Following the accident, the client received treatments from a chiropractor. The case settled in January 2006. The attorney immediately disbursed part of the settlement to his client and part to himself as fees but failed to disburse any funds to the chiropractor. The attorney acknowledged in the settlement statement that the chiropractor was owed almost $3,000 for services rendered, the client had signed a doctor's lien in favor of the chiropractor, and the chiropractor had contacted the attorney numerous times between July and November 2006 seeking payment. The attorney's firm eventually paid the chiropractor in December 2006.

    By failing to provide the chiropractor with prompt notice of settlement and by failing for approximately 11 months, despite numerous requests from the chiropractor, to disburse any portion of the settlement funds due to the chiropractor, including those specifically enumerated in the January 2006 settlement statement prepared by the attorney and delineated in the doctor's lien, the attorney violated former SCR 20:1.15(d)(1) (effective before July 1, 2007).

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    Conviction of Driving While Under the Influence (Third Offense)

    Violation of SCR 20:8.4(b)

    In December 2006, an attorney was the subject of a traffic stop that led to charges being filed against the attorney. The attorney entered a guilty plea and was convicted of misdemeanor third-offense operating while under the influence. The attorney's sentence included a fine, jail time, and license revocation.

    By engaging in conduct leading to a criminal conviction of third-offense operating while under the influence, 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."

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    Failure to Supervise in a Criminal Matter

    Violations of former SCR 20:5.3(a) and SCR 20:5.3(b)

    A man hired an attorney to assist him in filing a motion for postconviction relief. At the time, a woman who was not a lawyer worked for the attorney as a legal assistant. The motion was promptly filed by the attorney and was denied by the court the next day.

    Approximately four months after the original motion was filed, a second motion was filed on the client's behalf. It, too, was promptly denied by the court. About a month later, a letter was sent on the client's behalf, urging the court to read the second motion carefully and set the matter for a hearing. While both the second motion and the letter contained what purported to be the attorney's signature, the attorney denied having knowledge of the drafting or filing of the second motion or of the letter. The attorney surmised that his legal assistant drafted and filed both the second motion and the letter as a result of a romantic relationship that he believed developed between the assistant and the client.

    Although the legal assistant denied being romantically involved with the client, correspondence between the two supports the notion. Furthermore, it appears the legal assistant made several phone calls from the attorney's office to the client in prison and arranged to visit him in prison under the guise of professional visits. The attorney denied being aware of the phone calls or the visits.

    By failing to adequately supervise his legal assistant, thus allowing her to file the second motion, write the letter, and call and visit the client in prison all without his knowledge, the attorney violated former SCR 20:5.3(a) (effective before July 1, 2007), which stated, "With respect to a nonlawyer employed or retained by or associated with a lawyer … A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer." The attorney also violated SCR 20:5.3(b) (unchanged by July 1, 2007 amendments to the Rules of Professional Conduct), which states, "A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer."

    The attorney received a public reprimand in 1987 and a six-month suspension in 1989, both for unrelated conduct.

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    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    In July 2007, an attorney was convicted of one count of misdemeanor disorderly conduct. The conviction stemmed from an altercation involving the attorney and his wife that occurred at the attorney's home earlier in the year. The attorney was sentenced to 12 months of probation, sentence withheld, with the following conditions: completion of certified abuser treatment and payment of court costs. The attorney 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.

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    Lack of Diligence; Failure to Communicate

    Violations of SCR 20:1.3, former 20:1.4(a), and 20:1.4(b)

    An attorney agreed to represent a client in a federal claim against the client's public employer. However, the attorney did not file a lawsuit nor did the attorney advise his client that he did not intend to file a lawsuit. By failing to make a decision regarding the viability of the client's claim, or otherwise advance the interests of the client over a protracted period of time (almost three years), the attorney violated SCR 20:1.3.

    While the attorney was reviewing the claim, the client repeatedly requested information regarding the status of his lawsuit and what efforts were being taken to advance his claim. The attorney failed to respond promptly to many of his client's requests for information and promised that he would file a lawsuit in the near future but never actually filed a suit, ultimately believing the lawsuit was meritless. By failing to keep his client reasonably informed about the status of his matter, and by failing to respond promptly to his client's reasonable requests for information, the attorney violated former SCR 20:1.4(a) (effective before July 1, 2007). The attorney also violated SCR 20:1.4(b) by failing to tell his client that the lawsuit lacked merit and that he did not intend to file a lawsuit or otherwise withdraw from representation. These actions prevented his client from making informed decisions about his case. The attorney had no prior discipline.

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    Sexual Relationship with Client

    Violation of SCR 20:1.8(j)

    An attorney agreed to represent a client in a divorce matter and on several other matters, including a traffic ticket, a replevin action, and a small claims action. Thereafter, the attorney had consensual sexual relations with the client while the client's legal matters remained pending and she continued to act as his attorney. The attorney did not have a consensual sexual relationship with her client when the client-lawyer relationship commenced.

    By engaging in sexual relations with a current client, the attorney violated SCR 20:1.8(j). The attorney had no prior discipline.

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    Lack of Diligence; Failure to Communicate

    Violations of SCR 20:1.3 and 20:1.4(a)

    A man served a motion on his child's mother, seeking to claim the child as a dependent for tax purposes. The motion was scheduled for a hearing. The woman called a lawyer, who told her that he would be unavailable for the hearing on the scheduled date. The lawyer asked the woman to send him a copy of the documents that were served. The woman decided to hire the lawyer, and she sent him additional information.

    After being hired, the lawyer did not confirm in writing to the client that he was unavailable for the hearing date. The lawyer also did not advise the client that she could expect to be cross-examined or have to question the adverse party at the hearing. The lawyer filed a short brief with the court on the client's behalf in which he did not indicate that he would not appear, and he did not request that the hearing be continued.

    After taking evidence, the court awarded the man the right to claim the child as a dependent. The man's counsel sent the proposed order to the lawyer, who discussed it with his client. The client instructed the lawyer to file a motion for reconsideration, and the lawyer agreed to file such a motion but then failed to do so.

    The lawyer's conduct violated SCR 20:1.3 (failure to act with reasonable diligence in representing a client) and 20:1.4(a) (failure to keep a client reasonably informed about the status of a matter.) The lawyer, now retired, had two prior private reprimands.

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    Failure to Properly Terminate Representation

    Violation of SCR 20:1.16(d)

    A lawyer received a private reprimand for twice violating SCR 20:1.16(d) in unrelated client matters.

    In the first matter, a man hired a lawyer to represent him on several pending charges. The client was required to pay a $2,500 attorney fee and a $500 expert witness fee, both of which the lawyer described as being nonrefundable. The lawyer never became counsel of record for the client, except on one charge, which the lawyer resolved. The client fired the lawyer, who refused to refund any portion of the fees, even though the lawyer owed a partial refund when his bill was calculated on an hourly basis and had not handled most of the matters for which he was hired. In failing to return any portion of the $2,500 fee or the $500 expert witness fee, the lawyer violated SCR 20:1.16(d), which requires a lawyer, on termination of representation, to refund any advance payment of fee that has not been earned. As a condition of the private reprimand, the lawyer participated in fee arbitration.

    In the second matter, the lawyer was trial counsel for another client in several felony and misdemeanor charges. On the day of sentencing, the client and the lawyer executed a notice of right to seek postconviction relief that indicated that the client planned to seek postconviction relief. Following a meeting two days later, the lawyer apparently believed that the client would pursue postconviction relief through the public defender's office, while the client believed that the lawyer would represent him. The deadline passed for the filing of a notice of intent to pursue postconviction relief. The client, acting pro se, later obtained an extension to file a notice of intent to pursue postconviction relief, which subsequently was filed by the lawyer.

    On termination of representation, in failing to protect the client's interests by either timely filing the notice of intent to pursue postconviction relief or providing the client with sufficient information to make clear that the client would have to accomplish the filing himself or through successor counsel, the lawyer violated SCR 20:1.16(d). The lawyer received a public reprimand more than 20 years ago.

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    Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

    Violations of SCR 20:8.4(c)

    An attorney was employed by a law firm as an associate. The attorney's practice consisted largely of estate planning, estate and trust administration, guardianships, and business law. At some point, the attorney decided to leave the firm and establish her own practice with two other lawyers. The attorney informed the firm of her decision on July 10, 2006. After the attorney left the firm, the firm discovered that the attorney had copied to her desktop computer, transferred to external storage media, and taken with her copies of at least 167 electronic client files, without the firm's or the clients' knowledge or permission. Some of the electronic client files the attorney copied were not files the attorney had worked on in the past. The attorney had begun copying the electronic client files onto her external storage media in April 2006. The attorney also copied to external media and took away from the firm a licensed software program that had been purchased by the firm.

    On July 20, 2006, a partner in the firm sent the attorney a letter requesting that she return or destroy the electronic client files she had taken and that she also return the copied software media and affirm in writing that no person had used the program or retained a copy of it in any format.

    In response to the partner's letter, the attorney gave the firm the storage media on which she had copied the client files and the software program and told the firm she had retained no copies of the information and that no one had used any of the information.

    The attorney said she considered the electronic documents in her client files to be her individual work product and that any client files on the electronic storage media that did not pertain to her clients were downloaded inadvertently.

    After the attorney left the firm, many clients chose to have their files transferred to the attorney at her new firm. At the time the attorney copied the clients' electronic files to external storage media, however, and at the time the attorney left the firm on July 12, 2006, those clients were still clients of the firm at which the attorney had been employed as an associate, and the attorney had not yet received permission from any of the clients to transfer the files to her.

    By copying to her desktop computer, transferring to external storage media, and taking with her at least 167 electronic client files when she left her employment at a law firm, without the firm's or the clients' knowledge or permission, the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c).

    The attorney also violated SCR 20:8.4(c) when she copied to external storage media and took away from her former employer's law office a licensed software program that had been purchased by the firm.

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    Failure to Provide Diligent Representation and Keep Client Informed

    Violations of SCR 20:1.3 and 20:1.4(a)

    A lawyer was appointed by the State Public Defender (SPD) to represent an incarcerated man who had a felony drug conviction. The lawyer wrote a timely introductory letter to the client, advised him trial transcripts had been requested, and invited communication.

    The lawyer told the client a complete trial transcript was necessary before commencing any postconviction representation, but the lawyer waited 21 months to compel preparation of an alleged missing transcript. The client's letters and phone calls to the lawyer requesting a meeting and information about the status of his case went unanswered for nine months. Only after the client contacted the SPD did the lawyer communicate with the client. Communication from the lawyer continued to be sporadic for two years, and the lawyer never responded in writing to the client's written requests for information.

    The lawyer's failure to compel preparation of the transcript in a timely manner violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client. The lawyer's failure to communicate consistently with the incarcerated client regarding his postconviction case violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

    The lawyer had no prior discipline.

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    Failure to Expedite Litigation and to Comply with Court's Orders

    Violations of SCR 20:3.2 and 20:3.4(c)

    An attorney represented the husband in a divorce and child custody matter. The attorney sought the wife's medical records and her children's medical, school, and adoption records. During a hearing, the court indicated that the attorneys could obtain the medical records and, if they did so, that a protective order should be issued. The parties signed release forms for such records. Neither of the attorneys drafted a protective order, and no such order was issued until several months later. The attorney and the husband obtained the wife's records, copied them, and read them.

    During a hearing in November 2005, the court indicated the attorney's actions were not in compliance with the court's previous order. The court ordered that the records be returned to the attorneys and sealed and that the lawyers provide sworn statements that the sealed sets of documents were complete and correct. The court granted the attorney's motion for psychological evaluations and indicated that the doctor performing the evaluation should not have access to past medical records. The court signed a protective order in December 2005, ordering all records to be sent to the guardian ad litem (GAL).

    The attorney did not comply with the order. At a hearing in March 2006, the attorney continued to argue that the records should be provided to the psychologist. The court indicated that the records would be sealed until trial, when the court would decide the admissibility of each record on an individual basis. The court issued a written order requiring that the parties return to the attorneys all of the records accompanied with sworn affidavits that they had returned everything within their custody; that the attorneys seal such documents and include a sworn statement on the outside of the sealed records indicating that the records were complete and correct; and that the records be delivered to the GAL after trial. The attorney did not comply with the order.

    In April 2006, the attorney filed a motion to lift the seal on the wife's records for purposes of a psychological examination. The court found the attorney's motion frivolous, indicated that the court had ruled on the records at least twice and such records would remain sealed until trial, and ordered that all the medical records immediately be turned over to the GAL. The attorney did not comply with the court's order.

    By repeatedly requesting the release of medical records to the court-appointed psychologist, including filing a motion to that effect after the court had previously ruled on such issue on more than one occasion, the attorney violated SCR 20:3.2 (unchanged by amendments to SCR Chapter 20, effective July 1, 2007), which requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

    By failing to comply with the court's oral order and subsequent written orders that all the records of the parties and their children be sealed, that each attorney attest that he had obtained all the records from his client and sealed them, and that the attorneys immediately forward to the GAL all such records in the attorneys' or the parties' possession, the attorney violated SCR 20:3.4(c) (unchanged by amendments to SCR Chapter 20, effective July 1, 2007).

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    Failure to Provide Diligent Representation and to Keep Client Informed

    Violations of SCR 20:1.3, 20:1.4 (a), and 20:1.4(b)

    An attorney represented an incarcerated man for postconviction relief on a felony conviction. The attorney delayed filing a writ for 11 months. For more than 20 months after filing the writ the attorney did not respond to letters, phone calls, and emails requesting information on the status of the writ and other postconviction-relief matters. The attorney conveyed inaccurate information, thereby precluding the client from making informed decisions, and failed to monitor the court's action, resulting in the client's needing to write directly to the judge to find out the court's disposition (it had acted on his writ four months earlier).

    In failing to act with reasonable diligence and promptness in representing the client, the attorney violated SCR 20:1.3. In failing to keep the client reasonably informed about the status of a matter, failing to promptly comply with reasonable requests for information, and failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, the attorney violated SCR 20:1.4(a) and (b).

    The attorney had no prior discipline.

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    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    An attorney was convicted of second-offense operating a motor vehicle while under the influence and third-offense operating a motor vehicle while under the influence, in violation of Wis. Stat. section 346.63(1)(a). The attorney was sentenced to 120 days in the local jail with Huber privileges, was ordered to pay a total of $2,808 in fines and court costs and undergo a mental health and alcohol assessment, and had his operating privileges suspended for six months.

    By engaging in conduct resulting in separate convictions for second-and third-offense operating a motor vehicle while under the influence, contrary to section 346.63(1)(a), in each instance 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 been publicly reprimanded for his conduct in two separate matters.

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    False Statement to a Court; Conflicts of Interest

    Violations of former SCR 20:3.3(a)(1), former 20:1.7(b), and 20:1.7(a)(1), (2), (b)(1), (3), (4)

    A man died in January 2005 survived by five adult children. A dispute arose between three of the siblings and the sibling who had been named personal representative regarding the value and distribution of the estate. The three siblings hired an attorney to attempt to negotiate a settlement of the estate with the personal representative and, if that failed, to file an action to recover certain assets in the possession of the personal representative and one of the three siblings. The attorney initiated a petition for formal administration of the estate and advised the probate court that she represented the estate. The attorney continued to represent the estate after the court appointed a nonfamily member as personal representative, and she acted on behalf of the estate to recover assets from one of the three siblings who had hired her and from the sibling who had been named personal representative.

    By purporting in written and oral statements to the court to be the attorney for "the estate," despite not having not hired by the named and acting-personal representative, the attorney violated former SCR 20:3.3(a)(1) (effective before July 1, 2007), which stated, "A lawyer shall not knowingly … make a false statement of fact or law to a tribunal."

    By: 1) representing the estate in the petition for formal administration and in the successive lawsuits to recover assets after having been hired to pursue specific action with regard to the estate beneficial to the interests of three, but not all, of the estate beneficiaries; 2) pursuing action beneficial to the personal interests of three, but not all, of the beneficiaries while acting as counsel for the estate; 3) representing the estate in the lawsuit against one of the three siblings who had hired the attorney; and 4) engaging in the aforementioned course of conduct notwithstanding the presence of conflicts of interests, and in the absence of any written consent from the affected clients, the attorney violated former SCR 20:1.7(b) (effective before July 1, 2007), which stated: "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client … unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents in writing after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."

    The lawyer also violated SCR 20:1.7(a)(1) and (2), which states: "Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."

    The attorney also violated SCR 20:1.7(b)(1), (3), and (4), which states: "Notwithstanding the existence of a concurrent conflict of interest under par. (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; … (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in a writing signed by a client."

    The attorney had no prior discipline. As a condition to imposition of the reprimand, the attorney was required to withdraw from representing any party in the two pending estate matters and to agree to refrain from representing any party in any other legal matters related in any way to the pending estate matters.

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    Lack of Competence; Failure to Communicate

    Violations of SCR 20:1.1 and 20:1.4(b)

    A man hired an attorney to represent him in three pending Racine County cases resulting from his arrest for first-offense operating while intoxicated (a civil offense) and his refusal to consent to a breathalyzer/blood test. At the time of his arrest, the man held a commercial driver's license (CDL) and made his living driving trucks. The attorney understood that the client's primary objective with regard to the pending charges was to retain his CDL or obtain an occupational permit on his CDL so that he could continue to earn his living.

    After the client was arrested but before he entered into a plea agreement on the pending charges, a federal law change went into effect disqualifying drivers convicted of OWI from obtaining an occupational permit on a CDL for one year. The attorney was fully aware of the law change and its effective date but mistakenly believed that it would not apply because the client's arrest had been before the effective date.

    By failing to thoroughly prepare and to accurately research and analyze the law relevant to the client's case, resulting in misadvising the client that he would be eligible to obtain an occupational CDL, the attorney violated SCR 20:1.1, which states, "A lawyer shall provide competent representation to a client," defined as requiring the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

    By: 1) failing to explain to the client the possibility and procedures for reopening his case after he was denied an occupational CDL; 2) failing to explain to the client before his plea that there had been a change in the law relevant to occupational CDLs and that the attorney had not confirmed the client would be eligible for an occupational CDL; 3) failing to discuss with the client that the attorney was having difficulty coming up with a solution for the client's ineligibility for an occupational CDL; and 4) failing to promptly inform the client that the attorney had been advised by the court that there were no other steps available to cause the client to obtain an occupational CDL, and so that in each instance the client could make informed decisions regarding the representation, the attorney violated SCR 20:1.4(b), which states, "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

    The attorney had no prior discipline.

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    Failure to Communicate and to Return Client's File

    Violations of former SCR 20:1.4(a), 20:1.4(b), and former 20:1.16(d)

    An attorney represented a woman in a divorce. One issue in contention was whether the marital residence should be included in the marital estate. The deed showed the husband's brother as the owner, but the client claimed that she and her husband were purchasing the home from the brother, had made payments to him, and had accumulated equity. The husband and the brother claimed the home belonged to the brother and said that the client and her husband paid the homeowner's insurance and taxes and maintained the home in lieu of rent.

    The attorney's firm filed a third-party complaint against the brother in the divorce action, alleging that the client and the husband, not the brother, owned the home.

    At the contested divorce trial, the client presented no evidence of the payments she alleged had been made by her husband to the brother for purchase of the home. In a June 6, 2003 decision, the court denied the client's third-party claim against the brother, finding that there was no agreement to purchase the home. The court concluded that the client intentionally fabricated her claim, held that the client's claim against the brother was frivolous, and granted the brother's request for attorney fees.

    The court gave the brother 30 days to submit his attorney fee request, after which the client had 30 days to object in writing to the necessity or reasonableness of the fees, and the brother had 15 days thereafter to respond to the client's submission.

    In a June 17, 2003 letter to the attorney, adverse counsel said he intended to ask the court to order that the attorney's firm be responsible for the brother's attorney fees.

    On June 24, 2003, the attorney sent a letter to the client confirming that they had spoken about the court's decision and informing the client that the firm would not be able to handle an appeal because the client had not paid the firm's fees. The attorney's June 24, 2003, letter did not mention the issue of the brother's attorney fees or the fact that the court order had granted the client 30 days to respond to the reasonableness or necessity of the brother's attorney fees after they were submitted to the court. Despite having knowledge that adverse counsel intended to ask the court to assess the brother's attorney fees against her firm, the attorney did not inform the client of the fact that the firm's and the client's interests had diverged with respect to the issue of who should be responsible for the brother's attorney fees.

    Adverse counsel sent a July 2, 2003, letter to the court itemizing the brother's attorney fees and requesting that the fees be assessed against the attorney's firm.

    On July 18, 2003, the attorney filed a motion requesting that her firm be permitted to withdraw as the client's counsel because the client had failed to pay the firm's legal fees. No date was set for a hearing on the motion to withdraw because the attorney believed it was the court's procedure to grant the withdrawal request if no objection was received within five days. In fact, the court did not sign the order granting the attorney's motion to withdraw until Sept. 9, 2003.

    The client consulted another lawyer, and that lawyer's firm sent letters of July 18, July 30, and Aug. 5, 2003 to the attorney, requesting the name of the attorney's malpractice carrier. The consulted lawyer's firm said it was considering becoming involved on the client's behalf but was not filing a notice of appearance at that time.

    The attorney filed a memorandum on July 24, 2003, with a copy to the client, opposing the request that the brother's fees be assessed against the attorney's firm and arguing that any fees assessed should be assessed solely against her client.

    In a July 25, 2003 responsive submission, adverse counsel argued that it was the attorney who maintained the frivolous claim and that her firm should be responsible for the brother's attorney fees. In a July 28 response to adverse counsel's July 25 letter, the attorney again argued that her client should be responsible for the brother's attorney fees. The attorney did not send a copy of the July 28, 2003 letter to her client.

    In an August 8, 2003 letter decision, the court ordered that the brother's fees be assessed against the client only and not her attorney.

    On Sept. 5, 2003, the lawyer the client had consulted sent the attorney a letter stating that the client was making her second request for her file. The attorney replied by fax on the same day, stating that the firm would provide a copy of the client's file only if it received a check for $575 and a promise to pay $.35 per page for all copies over 1,000. By return fax later that day, the consulted lawyer stated he would not pay for the client's file and pointed out that the client needed her file in order to appeal. Successor counsel never obtained the client's file from the attorney or her law firm. Although the attorney said the client was routinely sent copies of all documents and correspondence throughout the course of the representation, several letters generated by the attorney or her firm, including letters regarding settlement proposals, did not contain copy notations to the client.

    By failing to explain to the client that the divorce was not yet concluded because each side was entitled to make further submissions to the court on the issue of the brother's attorney fees and that, although she could no longer represent the client, the client was entitled to respond to adverse counsel's submission regarding the brother's fees; and by failing to ensure, during the course of the representation, that the client received copies of all correspondence to adverse counsel and the court, including the attorney's July 28, 2003 correspondence regarding the brother's fees, the attorney violated former SCR 20:1.4(a) (effective before July 1, 2007) and SCR 20:1.4(b).

    By failing to provide the client with a copy of her file on request, the attorney violated former SCR 20:1.16(d) (effective before July 1, 2007).

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