Vol. 82, No. 11, November 2009
Public reprimand of Colleen J. Locke
The Office of Lawyer Regulation (OLR) and Colleen J. Locke, Jefferson, agreed to the imposition of a public reprimand, pursuant to SCR 22.09(1). A referee appointed by the Wisconsin Supreme Court approved the agreement and issued the public reprimand on Sept. 11, 2009, in accordance with SCR 22.09(3).
A married couple consulted Locke about a possible bankruptcy because they had approximately $200,000 in unpaid medical bills. The clients told Locke they did not want to lose the equity in their home, but because they also told her they wanted to move closer to their daughter and her family, Locke advised the clients to file for Chapter 7 bankruptcy. She never discussed with them the possibility of filing a Chapter 13 petition.
Locke filed a Chapter 7 petition for the clients that listed as the value of their home the amount indicated on their most recent property tax bill. Subsequently, the bankruptcy trustee notified Locke that the value of the clients’ home, minus a relatively small mortgage, created a substantial equity in the bankruptcy estate, and the trustee asked Locke if her clients had a plan for redeeming the residence. The trustee also informed Locke that the schedules she had filed were deficient in certain respects. Locke did not file amended schedules to correct the deficiencies nor did she discuss the matter of the excess equity with her clients and explain the ramifications to them.
Later, when the clients did learn they were probably going to lose their home, they hired successor counsel who, over the trustee’s objection, was successful in converting the clients’ bankruptcy to a Chapter 13 proceeding. Locke refused successor counsel’s request for a refund of the $1,500 the clients had paid her. Subsequently, successor counsel’s motion for a court order requiring a refund was successful, and Locke was ordered to refund $1,000 to the clients, which she did.
By advising her clients to file a Chapter 7 petition for bankruptcy when she knew they had substantial equity in their home they did not want to lose, and by failing, after being alerted by the trustee to the clients’ substantial equity, to file a motion to convert to Chapter 13 or to otherwise take steps to rectify the problem, Locke failed to provide competent representation, in violation of SCR 20:1.1.
By failing to discuss with the clients the option of filing a Chapter 13 petition and by failing to explain the differences between a Chapter 7 and a Chapter 13 filing and the potential ramifications of each option, particularly with respect to preserving the equity they had in their home, Locke failed to consult with her clients about the means to accomplish their objectives and failed to provide explanations necessary to permit the clients to make informed decisions, in violation of SCR 20:1.2(a) and 20:1.4(a)(2) and (b).
By failing to file an amended petition and schedules to correct deficiencies in the initial documents she had filed, particularly after she had been made aware of the problems, Locke failed to act with reasonable diligence, in violation of SCR 20:1.3.
After receiving notice from the trustee about the excess home equity, by failing to explain to the clients that the trustee intended to apply the excess equity in their home to their debts and that they would lose their home and their equity in it, and by failing to discuss the problem with the clients after she said in a subsequent email she would do so, Locke violated SCR 20:1.4(a)(3) and (4) and 20:1.4(b).
By stating in a letter to successor counsel that the clients told her their home was worth half the amount listed on their tax bill, Locke engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c).
By stating in an affidavit she filed with the bankruptcy court that the clients told her their home was “worth much less” than it was listed for, when she reported the home’s value on the bankruptcy schedules to be the amount listed on the clients’ tax bill, when she admittedly had no information to substantiate a lesser value for the home, and when a letter she sent to the clients said it was her “plan” to have the home valued “at least 25% lower than it was on our schedules,” Locke made a false statement of fact to a tribunal, in violation of SCR 20:3.3(a)(1).
Locke has no prior discipline.
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Public reprimand of Suzanne M. Smith
The OLR and Suzanne M. Smith, Burlington, agreed to the imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement and issued the public reprimand on Sept. 20, 2009, in accordance with SCR 22.09(3). The reprimand was based on Smith’s misconduct in three separate matters.
In the first matter, a truck driver hired Smith to represent him in a dispute he had with a trucking company. Smith failed to act with reasonable diligence, in violation of SCR 20:1.3, by failing to file an answer to the company’s civil complaint against the client, which caused a default judgment in excess of $63,000 to be entered against the client. Smith again violated SCR 20:1.3 by failing to file a motion to vacate the default judgment against her client and by failing to appear with the client at a supplemental examination, which caused an order to show cause to be entered against the client. Subsequently, Smith and the company’s attorney entered into a stipulation to remove the order-to-show-cause hearing from the court calendar, with a proviso that the client pay, by a certain date, the costs and attorney fees incurred in setting the supplemental examination and order-to-show cause hearings and with a proviso that the client submit to a supplemental examination by a certain date. Smith did not consult with the client before entering into the stipulation, and, although she said she intended to pay the costs herself, she did not do so by the required date, thereby again violating SCR 20:1.3.
Smith failed to timely inform the client that she had not filed an answer and that a default judgment had been entered against him, and she failed to adequately explain to the client the purpose of a supplemental examination, in violation of SCR
20:1.4(a)(3) and (b). Further, by entering into the stipulation with opposing counsel without first consulting the client, particularly when the stipulation obligated the client to pay costs and to appear at a supplemental examination, Smith violated SCR 20:1.2(a), 20:1.4(a)(1) and (2), and 20:1.4(b). By entering into a stipulation that required the client to submit to a postjudgment supplemental examination that could, and did, result in adverse financial consequences for him, when she knew that the judgment against the client was a default judgment and that a motion to vacate it was necessary because the client had valid defenses and counterclaims that he had not had an opportunity to present, Smith failed to provide competent representation, in violation of SCR 20:1.1. Finally, Smith violated SCR 20:1.4(a)(4) by failing to respond to telephone calls from the client and his wife.
The client’s successor counsel’s motion to vacate the default judgment was granted, and the case ultimately was settled.
In a second matter, Smith was appointed by the State Public Defender (SPD) to represent a client in probation revocation proceedings. After the client’s administrative appeal of his revocation was denied, Smith agreed to file a petition for a writ of certiorari in circuit court on the client’s behalf. Smith failed to request documentation from the client needed to file the petition until three days before the filing deadline, failed to file a motion for an extension to obtain the required documentation from the client and to file the petition, and failed to file a petition by the deadline, in violation of SCR 20:1.3. Smith did not inform the client that she had missed the filing deadline, thereby failing to keep the client informed about the status of his matter, in violation of former SCR 20:1.4(a) (effective before July 1, 2007). After the client’s appellate counsel’s motion to reset the deadline for filing a petition for a writ of certiorari was granted, Smith again agreed to file the petition because appellate counsel was not appointed to do so. Smith failed to file the petition by the second deadline, in violation of SCR 20:1.3. Smith failed to communicate with the client between the second time she agreed to file the petition for the writ and the deadline for doing so and failed to inform the client that she had missed the second deadline, in violation of SCR 20:1.4(a)(3) and (4). The client was released from prison several months after the second deadline had passed.
In a third matter, the SPD appointed Smith on Dec. 20, 2006, to represent a client with respect to sentencing after probation revocation proceedings. Smith did not meet with the client or otherwise communicate with him until just before the sentencing hearing on Jan. 23, 2007. After the client was sentenced, the client signed a notice indicating his intent to seek postconviction relief. Smith also signed the document certifying that she understood it was her duty to file the client’s notice of intent to pursue postconviction relief for the client within 20 days. Smith’s client file contained a copy of a Jan. 31, 2007, letter transmitting the notice of intent to the clerk of courts and requesting that a file-stamped copy be returned to Smith. The notice of intent was never filed with the court. Smith said she closed her file immediately after mailing the Jan. 31, 2007 letter.
By failing to communicate with the client or meet with him until just before the sentencing hearing on Jan. 23, 2007, and by failing to respond to at least one telephone call from the client’s wife and to accurately respond to her inquiries about the notice of intent, Smith violated former SCR 20:1.4(a) (effective before July 1, 2007). By failing to calendar the client’s file for review to confirm that the notice of intent had actually been filed, and by failing to take steps to ascertain whether the notice of intent had been received by the court even after she had been notified that the client was concerned because he had not received any information about his appeal, Smith violated SCR 20:1.3.
Smith has no prior discipline.
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Hearing to reinstate Elvis C. Banks
On Friday, Jan. 15, 2010, at 9 a.m., a public hearing will be held before referee Timothy L. Vocke at the Milwaukee County Courthouse, 901 N. Ninth St., in a room to be determined, on the petition of Elvis C. Banks of Southaven, Miss., 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 Banks, 2003 WI 115, 265 Wis. 2d 45, 665 N.W.2d 827, the Wisconsin Supreme Court revoked Banks’s Wisconsin law license based on Banks’s professional misconduct consisting of multiple counts of incompetence, neglect, failing to properly communicate with clients, dishonesty, trust account violations that included conversion of client funds, additional counts of disobeying a court order, and failing to properly supervise employees. While revoking Banks’s license based on the 42 misconduct counts it found, the court dismissed Banks’s petition for consensual revocation that included additional misconduct the OLR was investigating at the time, about which Banks pleaded he could not defend.
To be reinstated, Banks has the burden of substantiating 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 revocation order and with supreme court rules.
Relevant information may be provided to or obtained from OLR investigator Emily Kokie or OLR litigation counsel Bill Weigel, 110 E. Main St. #315, Madison, WI 53703-3383; toll-free (877) 315-6941.
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Disciplinary proceedings against Paul Rudolph
On Sept. 15, 2009, the Wisconsin Supreme Court suspended the Wisconsin law license of Paul B. Rudolph, Scottsdale, Ariz., for 30 days, as discipline reciprocal to a 30-day suspension imposed against Rudolph’s Arizona law license by the Arizona Supreme Court in 2008. Rudolph also failed to notify the OLR of his Arizona suspension within 20 days of that suspension, contrary to SCR 22.22(1). Disciplinary Proceedings Against Rudolph, 2009 WI 94.
The Arizona suspension arose out of Rudolph’s misconduct in writing approximately six threatening emails to two attorneys who represented a party in a legal malpractice lawsuit against Rudolph. In the emails, Rudolph (under an assumed name) threatened the attorneys and their families with bodily harm and included profane abusive language and racial slurs. Rudolph was convicted in Arizona of one count of misdemeanor harassment. In the Arizona discipline case it was found that Rudolph committed a criminal act; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; engaged in conduct that was prejudicial to the administration of justice; and engaged in conduct involving offensive personality.
Rudolph’s Wisconsin law license has been inactive since July 15, 1999.
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Disciplinary proceeding against P. Nicholas Hurtgen
On Sept. 9, 2009, the supreme court granted a SCR 22.19 petition for consensual license revocation filed by P. Nicholas Hurtgen. Hurtgen’s petition acknowledged he could not successfully defend against pending charges of violations of SCR 20:8.4(b) and (c) stemming from his conviction, following a guilty plea, of one count of aiding and abetting wire fraud in violation of 18 U.S.C. §§ 1343, 1346, and 2. Disciplinary Proceedings Against Hurtgen, 2009 WI 92.
Hurtgen’s conviction was based on his aiding and abetting a scheme to defraud the Illinois Health Facilities Planning Board and the state of Illinois of the honest services of a planning board member in connection with applications by a hospital to build a hospital and medical office building. The charge was brought in connection with a long-running federal investigation of corruption in the administration of former Illinois Gov. Rod Blagojevich. As part of Hurtgen’s plea agreement, he agreed to cooperate with the criminal investigation in return for a lighter sentence.
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