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    Lawyer Discipline

    The Office of Lawyer Regulation (OLR), an agency of the Wisconsin Supreme Court and component of the lawyer regulation system, assists the court in carrying out its constitutional responsibility to supervise the practice of law and protect the public from misconduct by lawyers. The OLR has offices at 110 E. Main St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941. The full text of items summarized in this column can be viewed at www.wicourts.gov/olr.
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 4, April 2010

    Public Reprimand of Paul Strouse

    The Office of Lawyer Regulation (OLR) and Paul Strouse, Milwaukee, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A referee appointed by the Wisconsin Supreme Court thereafter approved the agreement, and issued the public reprimand on Jan. 19, 2010. The public reprimand stemmed from two matters investigated by the OLR.

    In the first matter, Strouse filed a Chapter 13 bankruptcy petition on behalf of clients. As part of the Chapter 13 plan, the clients initially agreed to exclude the promissory note on their vehicle from the plan and make car payments separately. The clients were unable to consistently make payments on their vehicle, however, and so they asked Strouse in June 2008 to modify their Chapter 13 plan to include the vehicle lien. Strouse did not immediately comply with the clients’ request and did not file a proposed amended plan with the court. Later, after the creditor obtained relief from the automatic stay and threatened repossession of the vehicle, the clients repeatedly attempted to contact Strouse but were unable to obtain Stouse’s prompt assistance in filing a modified bankruptcy plan. After four months, and the filing of an OLR grievance, Strouse filed an amended plan on behalf of the clients.

    By failing over four months to draft a modified bankruptcy plan per the clients’ request, Strouse violated SCR 20:1.3. By failing to respond to the clients’ inquiries and to keep them reasonably informed regarding the status of their request to amend their bankruptcy plan, Strouse violated SCR 20:1.4(a)(3) and (4).

    In a second matter, a man hired Strouse to represent him in a Chapter 7 bankruptcy matter. In early February 2008, Strouse was informed that the court had dismissed the client’s bankruptcy matter without discharge because no proof had been filed to indicate that the client had completed a required course in financial management. Strouse informed his client that he would acquire the completion certificate and file a motion to reopen the bankruptcy, but he did not file a motion to reopen for more than 10 months. Strouse also prepared a false discharge order to keep his client’s employer from garnishing wages. Strouse gave the false order to his client, who provided it to his employer. Strouse filed a motion to reopen in November 2008, at which point the firm hired by the employer to garnish the client’s wages filed an objection and alerted the court to the allegedly false order.

    During a hearing in January 2009 regarding the motion to reopen, the bankruptcy judge learned of the false order and, believing that Strouse’s client may have prepared it, ordered Strouse to investigate the matter. At the time, Strouse did not disclose to the court that he had prepared the false order. Later, Strouse self-reported his conduct to the OLR and to the bankruptcy judge, admitting that he had created the false order and given it to his client. As a result of Strouse’s preparation of a false discharge order, the judge suspended Strouse from practicing in the U.S. Bankruptcy Court for the Eastern District of Wisconsin for six months, commencing April 1, 2009.

    By failing for more than 10 months to file a motion to reopen his client’s bankruptcy case, Strouse failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. By intentionally creating a false discharge order, Strouse violated SCR 20:8.4(c). Strouse’s provision to his client of false information regarding case status, including that Strouse had filed a motion to reopen the bankruptcy proceeding when he had not yet done so and that he had received a discharge order, aggravated by Strouse’s creation of and delivery to the client of a fabricated discharge order, constituted a violation of SCR 20:1.4(a)(3) and 20:8.4(c). By failing at a motion hearing to clarify the origin of the discharge order, and causing the court and the firm to remain uncertain as to the source of the order, Strouse again violated SCR 20:8.4(c).

    Strouse had no prior discipline.

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    Disciplinary Proceedings against Douglas Batt

    In an order dated Feb. 3, 2010, the supreme court publicly reprimanded Douglas Batt, Cudahy, and ordered Batt to pay the cost of the disciplinary proceedings. Disciplinary Proceedings Against Batt, 2010 WI 7.

    Batt’s misconduct related to representing a client in a single criminal matter. On August 10, 2007, an administrative law judge (ALJ) revoked the client’s probation. The ALJ forwarded his decision to Batt, who had appeared on behalf of the client at the revocation hearing. A letter accompanying the revocation decision notified Batt that the deadline to file an administrative appeal was Aug. 24, 2007. After the time for filing an appeal had expired, Batt spoke to his client and sought an extension to file an appeal. The administrator denied the extension, and the decision became final. Batt did not inform the client that the administrator had denied his extension request.

    In failing to consult with the client regarding the appeal of the adverse probation-revocation decision or otherwise advise the client of options available to him, Batt violated SCR 20:1.4(a)(2), which provides that a lawyer shall “reasonably consult with the client about the means by which the client’s objectives are to be accomplished. …” In addition, Batt’s failure to notify his client that the extension request had been denied violated SCR 20:1.4(a)(3), which provides that a lawyer shall “keep the client reasonably informed about the status of the matter. …”

    Batt received a public reprimand in 2007.

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    Disciplinary Proceedings against Robert J. Smead

    In an order dated Jan. 27, 2010, the supreme court suspended the law license of Robert J. Smead for 120 days, concluding two separate disciplinary proceedings. The court imposed two 60-day suspensions, to run consecutively. Disciplinary Proceedings Against Smead, 2010 WI 4.

    In the first proceeding, identified as Smead I, the court found that Smead committed 10 counts of professional misconduct in three client matters. The first matter involved client W.P., who hired Smead to represent him in a divorce action. Following some preliminary work on the matter, Smead failed to inform W.P. of relevant court dates or advise W.P. on issues associated with the custody of minor children; did not keep W.P. informed of discovery requests from W.P.’s spouse; and failed to return W.P.’s telephone calls. Smead also did not properly account for his fee or refund unearned fees. Accordingly, the court concluded that Smead violated SCR 20:1.4(a), 20:1.15(b)(4), and 20:1.16(d). In addition, Smead’s failure to cooperate with the OLR investigation violated SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h).

    In a second divorce matter, client R.B. hired Smead in January 2006. In May 2006, R.B. and his spouse entered into a stipulated settlement, and the circuit court held a final hearing. Smead agreed to prepare and file with the court the findings of fact, conclusions of law, and judgment and a quitclaim deed. Smead did not complete the work until April 2007, after R.B. filed a grievance with the OLR. Smead’s failure to timely prepare and file the necessary documents to conclude R.B.’s divorce proceeding and property settlement violated SCR 20:1.3. Smead, who was temporarily suspended for failing to cooperate with the OLR investigation, also violated SCR 22.26(1)(e), enforceable through SCR 20:8.4(f), by failing to timely file the affidavits required following a suspension. Smead’s failure to cooperate with the OLR also violated SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h).

    The third matter involved a criminal case. D.B. hired Smead in June 2006. Thereafter, D.B. hired successor counsel and requested a refund of an advance fee. D.B. filed a grievance over the fee dispute. Smead’s refusal to cooperate with the OLR investigation, ultimately resulting in his temporary suspension, violated SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h). Smead’s failure to file the appropriate affidavits following his temporary suspension also violated SCR 22.26(1)(e), enforceable through SCR 20:8.4(f). The matters in Smead I were resolved through a default judgment in favor of the OLR.

    In the second disciplinary proceeding, identified as Smead II, the court accepted a stipulation that Smead committed 15 counts of professional misconduct involving four client matters. In the first matter, Smead agreed to represent E.K and B.K. in recovering a computer system (or, alternatively, recovering compensation for the computer system) from a former business associate. Smead agreed to charge a contingent fee of 10 percent but did not put the fee agreement in writing. Thereafter, Smead failed to file any legal action against the former associate and did not inform the clients that he had been suspended in October 2007. In 2008, Smead stopped returning the clients’ telephone calls and refused to return the clients’ files following a demand to do so. The court found that by failing to timely advance the clients’ interests, Smead violated SCR 20:1.3. In addition, Smead’s failure to put his contingent fee in writing violated SCR 20:1.5(c). By failing to inform the clients of his suspension and their need to seek other counsel, Smead violated SCR 22.26(1)(a) and (b). Smead’s refusal to return papers and property belonging to the clients constituted a violation of SCR 20:1.16(d). Finally, Smead’s refusal to respond to the grievance and cooperate with the OLR investigation violated SCR 22.03(2) and (6), enforceable through SCR 20:8.4(h).

    In the second matter, Smead agreed to represent L.S. on a family law issue even though Smead knew his license would be suspended shortly. L.S. paid Smead an advance fee of $485 and asked him to file a contempt motion. Smead failed to file the motion, and thereafter the court suspended his license. Smead did not advise L.S. to seek new counsel. Later, Smead refused to take any of L.S.’s telephone calls, failed to pursue her case, and failed to refund any of the advance fee. Smead’s inaction on the case constituted a violation of SCR 20:1.3. Smead’s failure to inform L.S. to seek new counsel (because of his license suspension), his failure to return any unearned fee, and his failure to protect L.S.’s interests violated SCR 20:1.16(d). Smead’s failure to provide notice to L.S. of his suspension violated SCR 22.26(1)(a) and (b), and his failure to cooperate with the OLR investigation violated SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h).

    In a third matter, Smead agreed in April 2007 to represent S.M. in a criminal matter and accepted a partial fee of $1,000 from S.M.’s mother. After entering an appearance in the case and attending both the arraignment and a pretrial conference, Smead informed S.M. on the day of an additional court appearance that he could not appear in court because of his suspension. Instead of advising S.M. to seek other counsel, Smead advised S.M. to go to the court hearing without representation and told S.M. that he later would be able to represent S.M. After the hearing, S.M. sought advice from Smead. Not able to represent S.M., Smead promised to repay the partial fee, which he did not do, and he failed to respond to numerous telephone calls from S.M. The court determined that Smead’s failure to protect S.M.’s interests and return any unearned fee violated SCR 20:1.16(d). Smead’s failure to give timely notice of his suspension and to inform the client to seek other legal advice violated SCR 22.26(1)(a) and (b). In addition, Smead’s failure to cooperate with the OLR investigation violated SCR 22.03(2) and (6), enforceable through SCR 20:8.4(h).

    In a fourth matter, R.V. hired Smead to represent him in a felony drug case and paid Smead $2,000. Before the plea hearing, R.V. was unable to talk with Smead about possible negotiations with the district attorney. Smead arrived late at the October plea hearing and informed R.V. that he was suspended and would not be able to appear on his behalf. The court rescheduled the plea hearing for December 2007. From October to December 2007, Smead did not respond to any of R.V.’s calls. Smead failed to appear at the plea hearing, attended by R.V. and his family, and the court appointed new counsel for R.V. The supreme court found that Smead’s failure to give R.V. notice of his license suspension before the plea hearing, his failure to keep the client reasonably informed, and his failure to respond to reasonable requests for information violated SCR 20:1.4(a)(3) and (4). In addition, Smead’s failure to notify R.V. that he remained suspended, his failure to respond to R.V.’s telephone calls, his failure to attend the plea hearing, and his failure to otherwise protect R.V.’s interests violated SCR 20:1.16(d). Finally, Smead’s failure to cooperate with the OLR formal investigation violated SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h).

    The court ordered Smead to pay restitution and the costs of Smead I. In Smead II, the court ordered Smead to pay restitution but not costs.

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    Disciplinary Proceedings against Bartley G. Mauch

    On Jan. 21, 2010, the supreme court suspended the law license of Bartley G. Mauch, Prairie du Sac, for six months. In addition, the court ordered Mauch to pay the full cost of the disciplinary proceedings. Disciplinary Proceedings Against Mauch, 2010 WI 2.

    Mauch’s suspension was based on six counts of professional misconduct related to two matters: representing a client in a criminal matter and practicing law when his law license was suspended.

    In the first matter, Mauch was appointed by the Office of the State Public Defender (SPD) in April 2006 to represent a client in two criminal matters. Mauch violated SCR 20:1.3 by failing to timely file the client’s notice of intent to pursue postconviction relief and failing to timely file a motion to extend the time to file the notice of intent to pursue postconviction relief. Mauch violated former SCR 20:1.4(a) (in effect before July 1, 2007) by failing to provide the client with a copy of the notice of intent or otherwise to inform the client of the timing of the filing and by failing to keep the client informed regarding the status of the case.

    With regard to the second matter, the Board of Bar Examiners (BBE) advised Mauch on April 4, 2007, that his Wisconsin law license would be automatically suspended on May 29, 2007, because he had failed to comply with mandatory continuing legal education requirements. Mauch’s failure to comply continued, and on May 29, 2007, Mauch’s law license was suspended. Mauch filed a petition for reinstatement dated June 4, 2007, which was approved on June 7, 2007. Mauch violated SCR 31.10(1), via SCR 20:8.4(f), by engaging in the practice of law in Wisconsin during his suspension. Mauch violated SCR 20:8.4(c) by misrepresenting to the BBE in his petition for reinstatement that he had not practiced law during his suspension and by misrepresenting to the OLR that he had not received prior notice of his suspension.

    With regard to both matters, Mauch violated SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h), by failing to timely provide the OLR with requested records and information.

    Mauch had been publicly reprimanded in 1994 and in 2003, and his law license was suspended for 90 days in 2007.

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    Disciplinary Proceeding against Alan D. Eisenberg

    On Feb. 18, 2010, the supreme court revoked the law license of Alan D. Eisenberg, 68, Milwaukee, commencing April 1, 2010. In addition, the court ordered that Eisenberg pay the cost of the disciplinary proceeding. Disciplinary Proceedings Against Eisenberg, 2010 WI 11.

    The court found that Eisenberg violated SCR 20:3.1(a)(3) when he filed and pursued a civil action against an alleged domestic abuse victim when he knew, and it was obvious, that the lawsuit would serve merely to harass or maliciously injure the defendant, a woman whose husband had been acquitted of second-degree recklessly endangering safety, battery, and disorderly conduct less than 18 hours before Eisenberg filed the civil suit. The civil suit alleged malicious prosecution, false imprisonment, abuse of power, and defamation. In the course of pursuing the lawsuit Eisenberg, among other things, failed to perform the appropriate legal research or factual inquiry into the merits of the claims; sought compensatory and punitive damages from the woman when Eisenberg knew the woman was virtually judgment-proof; failed to appear at a mediation he had demanded; and conveyed to a court commissioner, a local newspaper, and the judge in the civil suit an untrue account of jurors storming the judge’s chamber in the criminal proceeding and demanding that the woman be prosecuted for perjury. The circuit court concluded that Eisenberg’s lawsuit violated Wis. Stat. sections 802.05, 814.025(3)(a), and 814.025(3)(b). The woman was awarded a judgment in the amount of $121,905.78.

    The referee in the disciplinary action recommended revocation, citing Eisenberg’s extensive disciplinary history, Wisconsin’s history of imposing progressive discipline, the nature of Eisenberg’s misconduct, and Eisenberg’s lack of candor at the disciplinary hearing. In adopting the referee’s recommendation, the court noted “some disturbing similarities between the conduct in the instant case and the conduct which formed the basis for Attorney Eisenberg’s first suspension in 1970.” The court also noted that Eisenberg “is apparently unable to conform his conduct to the standard expected of all members of the Wisconsin bar.” The court concluded, “In light of the aggravated nature of the misconduct and Attorney Eisenberg’s extensive disciplinary history, we conclude that no sanction short of revocation would be sufficient to protect the public, achieve deterrence, and impress upon Attorney Eisenberg the seriousness of his misconduct.”

    Eisenberg received a one-year suspension of his law license in 1970. In 1988, he was suspended for two years. In 1996, he was publicly reprimanded. In 2004, he received another one-year suspension.

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    Hearing to Reinstate Jeffrey L. Elverman

    On Wednesday, May 26, 2010, at 9 a.m., a public hearing will be held before referee John R. Decker at the offices of Peterson, Johnson & Murray S.C., 733 N. Van Buren St., Sixth Floor, Milwaukee, on the petition of Jeffrey L. Elverman to reinstate his Wisconsin law license. Elverman had practiced law in Milwaukee and Brookfield, and he now resides in Chicago. 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 Elverman, 2008 WI 28, 308 Wis. 2d 524, 746 N.W.2d 793, the supreme court suspended Elverman’s law license for nine months, based on his failing to report $230,000 in cotrustee fees he received from a client’s trusts as income on state and federal returns he filed from 1999-2003, violating a supreme court decision regulating the conduct of lawyers.

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

    Relevant information may be provided to or obtained from OLR investigator Lorry Eldien or OLR assistant litigation counsel Julie M. Scott, 110 E. Main St., Suite 315, Madison, WI 53703-3383. The OLR’s toll-free number is (877) 315-6941.

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