Wisconsin Lawyer: Private Reprimand Summaries:

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    Private Reprimand Summaries

    The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, in an official State Bar publication a summary of facts and professional conduct rule violations in matters in which the OLR imposed private reprimands. The summaries do not disclose information identifying the reprimanded attorneys.The following summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems.
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 11, November 2010

    Criminal Act (OWI 2d) that Reflects Adversely on Lawyer’s Fitness to Practice

    Violation of SCR 20:8.4(b)

    An attorney was convicted of misdemeanor second-offense operating while intoxicated based on an incident in which the attorney was driving erratically and failed field sobriety tests. His blood alcohol level tested at 0.244. The attorney’s sentence included 20 days’ jail with Huber privileges, driver’s license revocation for 17 months, and a fine. 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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    Lack of Diligence

    Violation of SCR 20:1.3

    An attorney agreed to serve as special administrator for an estate after two of the decedent’s adult children challenged the will. After settlement of the will contest, the court appointed the attorney to serve as personal representative of the estate, trustee of a testamentary trust for the benefit of two minor children of the decedent, and guardian of the two minors’ estates.

    As personal representative, the attorney assumed responsibility for filing federal and state income tax returns for the estate. The federal tax return was due on April 15, 2003, but the attorney did not mail the return until April 12, 2004. The late filing caused the estate to incur penalties and interest of $10,217.43. The attorney acknowledged his responsibility for the late filing and paid the penalties and interest from his law firm account.

    After filing the initial estate tax return, the attorney learned of potential tax savings that could be achieved by filing an amended federal tax return on behalf of the estate. Accordingly, the attorney prepared amended federal and state tax returns, but he once again missed the filing deadline. Although it was disputed whether the amended return and the proposed amended deductions would have been accepted by the IRS, it was apparent that the attorney miscarried his legal objective.

    A key asset in the estate administered by the attorney was the decedent’s home. The decedent’s father, who was the original guardian of the person for the two minor children, had lived at the home and paid the homeowner’s insurance premiums. After the guardian resigned and moved to another state, the attorney assumed responsibility for paying these premiums. However, in 2005 the attorney misplaced the insurance premium invoice and the policy lapsed. Although the attorney immediately arranged for reinstatement of the insurance policy, and no damage claim necessitated the need for the policy, the attorney once again failed to fulfill an assumed obligation.

    By failing to timely file federal estate tax returns and amended tax returns for the estate and failing to coordinate the timely payment of insurance premiums on a key estate asset, the attorney violated SCR 20:1.3, which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

    The attorney had no prior discipline.

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    Failure to Act With Diligence; Failure to Return Client File; Failure to Cooperate in OLR Investigation

    Violations of SCR 20:1.3, 20:1.16(d), and 22.03(2) and (6)

    A lawyer agreed to represent a man, on a pro bono basis, in connection with an alleged overpayment of child support. Despite numerous contacts from the client, the lawyer took no action on the client’s behalf. The client was ultimately able to obtain representation from a different attorney. Both the client and successor counsel repeatedly asked the first lawyer to return the case file or forward it to successor counsel, but the first lawyer failed to do so.

    After the client filed a grievance, the lawyer failed to cooperate in the OLR’s investigation. The court found that the lawyer violated SCR 20:1.3, 20:1.16(d), and 22.03(2) and (6). The court imposed a private reprimand on the lawyer, noting that he had retired to deal with a family medical situation and was no longer practicing. The court ordered the lawyer to return the case file within 30 days and pay the cost of the disciplinary proceeding. The lawyer received a private reprimand more than 12 years ago.

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    Criminal Act Reflecting on Fitness (Domestic Violence)

    Violation of SCR 20:8.4(b)

    In August 2007, a Wisconsin-licensed attorney was arrested and later charged with misdemeanor domestic violence in connection with a dispute with his wife and his son at their home in Michigan. The attorney entered into a deferred-prosecution agreement, one condition of which was to have no contact with his wife. Months later, the attorney violated this condition by contacting the victim. The attorney’s deferred-prosecution agreement was revoked, and he was convicted of domestic violence and sentenced to two years’ probation.

    By engaging in conduct leading to a criminal conviction on one count of misdemeanor domestic violence, 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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    Scope of Representation; Conflict of Interest (Sexual Relations)

    Violations of SCR 20:1.2(d) and former SCR 20:1.8(k)(2)

    An attorney represented a man on several criminal and traffic cases. Following the entry of convictions and the revocation of the client’s driving privileges, the attorney allowed the client to drive her vehicle while she accompanied him in the passenger seat on an errand. By allowing the client to drive her motor vehicle, the attorney knowingly assisted the client in committing the criminal act of driving after revocation, thereby violating SCR 20:1.2(d), which provides, in relevant part, “A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent….”

    The attorney also entered into a sexual relationship with the client. Although the attorney claimed that she had completed her representation of the client in his criminal and traffic cases, and therefore the client was not a current client within the meaning of the rule, issues regarding probation and Huber release arose following sentencing. Testimony supported the conclusion that both individuals expected an ongoing professional relationship. Accordingly, the attorney violated former SCR 20:1.8(k)(2)
    (effective through June 30, 2007), which provided, “A lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.”

    The attorney had no prior discipline.

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    Lack of Diligence

    Violation of SCR 20:1.3

    An attorney was appointed by the State Public Defender’s (SPD’s) office to represent a man on charges of burglary – building or dwelling and theft – moveable property. The lawyer was subsequently notified of additional charges that were to be filed against the client stemming from several separate incidents.

    The attorney met with the client before a scheduled pretrial conference to discuss a plea offer from the district attorney’s office. According to the attorney, the prosecution proposed that if the man entered a plea of no contest to one count of burglary in the one matter, all other charges would be dismissed but read in. The proposed plea also included an agreement by the district attorney not to ask for any sentence in excess of what was recommended in the presentence investigation report. The client accepted the plea offer and entered a plea of no contest to one count of burglary; all other charges were to be read in and dismissed.

    The client was sentenced to four years’ confinement followed by five years’ extended supervision. At the conclusion of the sentencing hearing, the client signed a notice of right to seek postconviction relief and checked the box on the form indicating that he planned to seek postconviction relief. The notice also was signed by the attorney. Following the sentencing hearing, the attorney failed to prepare and file the required notice of intent to pursue postconviction relief (hereinafter notice) within the requisite 20-day time period.

    The client subsequently wrote the SPD appellate office indicating that he had not heard from any attorney regarding filing an appeal in his case and requested that an attorney be assigned to his matter. The client also filed a motion to extend time for filing the notice, which the court of appeals denied. Later, the client filed a second pro se motion to extend time for filing the notice, which the court of appeals granted.

    The attorney acknowledged to the OLR the delay in filing the notice on behalf of the client and that he did not follow up further with the SPD’s office. The attorney also acknowledged that he did not act further on the file until he received a note from the client, at which time he recognized the problem and called the SPD’s office seeking advice as to how to proceed under the circumstances. After receiving no further response from the SPD’s office, approximately 10 days later the attorney drafted a petition to expand the time to perfect an appeal and filed the notice.

    By failing for approximately 18 months to file the notice of intent to pursue postconviction relief or to otherwise advance the client’s interests following conviction and sentencing, the attorney violated SCR 20:1.3, which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

    The attorney received a private reprimand in 1987.

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    Engaging in Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Violating a Supreme Court Decision Regulating the Conduct of Lawyers

    Violations of SCR 20:8.4(c) and 20:8.4(f)

    An attorney was employed by a Wisconsin law firm as a full-time associate. The attorney had previously been licensed in another state, but her license in that state became inactive shortly after she accepted employment at the Wisconsin firm. Before her Wisconsin employment, the attorney had worked as an independent contractor for an attorney in the other state. The attorney did not disclose to the Wisconsin firm or the firm’s malpractice carrier that she intended to continue working for the other attorney while she was employed by the firm. The attorney worked approximately 10 to 20 hours per week for the other attorney. Although the attorney said she performed the work for the other attorney at home, she said there were times “when I reviewed materials during my lunch hour or while taking a break.” While employed by the firm, the attorney never met her annual billing requirement. As an independent contractor, the attorney was not covered by the other attorney’s malpractice insurance. Because the firm was unaware of the attorney’s work for the other attorney, it could not disclose that work to its malpractice carrier. Because the firm was unaware of the attorney’s work for the other attorney, it was unable to perform appropriate conflict checks.

    By working for an out-of-state attorney as an independent contractor at the same time that she was employed by a Wisconsin law firm as a full-time associate and by failing to disclose her work for the other attorney to the firm or its malpractice carrier, the attorney violated SCR 20:8.4(c) and (f). SCR 20:8.4(c) prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. SCR 20:8.4(f) states, in relevant part, “It is professional misconduct for a lawyer to violate a … supreme court decision regulating the conduct of lawyers.” A supreme court decision with application in this matter is Disciplinary Proceedings Against Shea, 190 Wis. 2d 560, 527 N.W. 2d 314 (1995), in which the court found as a type of misconduct an attorney’s pattern of conduct that “constituted a breach of his fiduciary duty to his law firm and his duty of honesty in his professional dealings with it.”

    The attorney had no prior discipline.

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