Vol. 83, No. 8, August 2010
Public reprimand of William F. Mross
The Office of Lawyer Regulation (OLR) and William F. Mross, Racine, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A Wisconsin Supreme Court-appointed referee thereafter approved the agreement, and issued the public reprimand on May 27, 2010, in accordance with SCR 22.09(3).
The reprimand was based on misconduct found in two separate OLR inquiries. The first inquiry concerned Mross’s practice of law while under CLE suspension. The Board of Bar Examiners (BBE) notified Mross that if he did not report CLE attendance, his license would be suspended effective 4:30 p.m. on May 27, 2008. Because of Mross’s failure to meet his CLE obligations, the suspension was automatically imposed on May 27, 2008.
Despite knowing that his license was suspended, Mross attended creditor hearings in four bankruptcy matters and prepared and filed court documents in other matters while he was suspended. In his petition for reinstatement and a supplemental petition, Mross reported to the BBE some, but not all, of the law-practice activities he engaged in while suspended. In addition, he failed to reveal all these instances of practice to the OLR. Mross’s engagement in the practice of law while he was suspended violated SCR 31.10, which is enforced via SCR 20:8.4(f). His failure to fully disclosure the law-practice activities violated SCR 20:8.4(c) and SCR 22.03(6), which is enforced via SCR 20:8.4(f).
The second inquiry that led to findings of misconduct arose out of Mross’s representation of spouses in a Chapter 13 bankruptcy matter. The couple was unable to make payments under the plan proposed by the trustee. Mross made one of the clients’ payments, using his own money, to avoid the dismissal of the bankruptcy petition. The payment was returned because of insufficient funds, and then Mross replaced the check with a money order obtained with his personal funds. The clients reimbursed him. By giving the clients financial assistance in connection with their bankruptcy, Mross violated SCR 20:1.8(e), which prohibits such assistance except for payment of court costs and litigation expenses.
Mross was suspended for 90 days in 2003 for engaging in criminal conduct. He also received a private reprimand in 2004 and a public reprimand in 2006.
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Public reprimand of Craig A. Kubiak
The OLR and Craig A. Kubiak, Appleton, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee thereafter approved the agreement, and issued the public reprimand on May 27, 2010, in accordance with SCR 22.09(3).
On Dec. 19, 2008, Kubiak was stopped by the Calumet County Sheriff’s Department while driving. Officers responded following a report of a one-car accident, which occurred shortly before 3 p.m. The probable-cause section of the criminal complaint filed against Kubiak stated in part that “the analyst tested a sample of the defendant’s blood drawn at Calumet Medical Center within three hours of the defendant’s observed driving/operating, and the results of that examination indicated the presence of 0.252% alcohol by weight in the defendant’s blood.”
On March 9, 2009, after pleading no contest, Kubiak was convicted of a misdemeanor charge of operating while under the influence (OWI), second offense. A charge of operating with a prohibited alcohol concentration of 0.08 or more, second offense, was dismissed but read in for sentencing purposes. Kubiak’s sentence included 30 days’ jail with Huber privileges, license revocation for 18 months, and a fine.
Kubiak did not report his criminal conviction to the OLR and the clerk of the supreme court, as required under SCR 21.15(5). Kubiak stated that he had been under the mistaken impression that he was not required to report a misdemeanor conviction. The reporting requirement under SCR 21.15(5), however, does not distinguish between misdemeanor and felony convictions. Further, Kubiak was disciplined in 2006 in connection with a misdemeanor conviction.
Kubiak received a consent private reprimand in 2006. While driving under the influence of alcohol, Kubiak struck and caused minor damage to two moving vehicles. Kubiak did not stop at the scene of the accidents but was arrested after his vehicle struck a telephone pole. Kubiak was charged with two counts of misdemeanor hit and run, and with ordinance-level, first-offense OWI. Kubiak pleaded no contest to the OWI charge and to one of the hit-and-run charges. The other hit-and-run charge was dismissed but read in for sentencing purposes. The hit-and-run conviction provided evidence of a violation of SCR 20:8.4(b).
By engaging in conduct leading to a criminal conviction of second-offense OWI, Kubiak 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.”
By failing to report his criminal conviction to the OLR and the clerk of the supreme court, Kubiak violated SCR 21.15(5). SCR 21.15(5) is enforceable under the Rules of Professional Conduct via SCR 20:8.4(f), which states, “It is professional misconduct for a lawyer to … violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers.”
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Disciplinary proceeding against Thomas A. Rothstein
On April 28, 2010, the supreme court ordered that the Wisconsin law license of Thomas A. Rothstein, Minneapolis, be revoked as discipline reciprocal to a Jan. 6, 2010, Minnesota Supreme Court order that disbarred Rothstein. Disciplinary Proceedings Against Rothstein, 2010 WI 30.
Rothstein entered into a stipulation for revocation of his Wisconsin law license as discipline reciprocal to that of the Minnesota Supreme Court.
The Minnesota disbarment order arose out of Rothstein’s Oct. 14, 2009, guilty plea to one count of felony theft by swindle in an amount more than $35,000, in violation of subdivisions 2(4) and 3(1) and (2) of Minn. Stat. section 609.52. Rothstein’s guilty plea was based on his misappropriation of funds from the law firm in which he was a partner. Rothstein’s conduct violated rule 8.4(b) and (c) of the Minnesota Rules of Professional Conduct.
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Disciplinary proceeding against Glenn J. Blise
In an order dated May 12, 2010, the supreme court publicly reprimanded Glenn J. Blise, Kenosha, and ordered Blise to pay restitution and the cost of the disciplinary proceeding. Disciplinary Proceedings Against Glenn J. Blise, 2010 WI 34.
Blise’s misconduct related to representation of a client in a single criminal matter. In 2002, Blise agreed to seek postconviction relief on behalf of the client. The client repeatedly sought information regarding Blise’s efforts and the legal effect of a successful appeal but Blise did not respond. At one point, Blise abandoned appellate efforts. Although Blise claimed that he adequately informed the client regarding the risks associated with a successful appeal, the court accepted the referee’s findings that Blise failed to give reasonable notice to the client that he was foregoing the appeal and failed to allow for sufficient time for the client to employ other counsel before appeal deadlines expired. When the client sought a refund of unearned fees paid as part of the terminated appellate efforts, Blise refused to refund them.
The court concluded that by failing to communicate with the client about the status of his case and failing to promptly comply with reasonable requests for information, Blise violated former SCR 20:1.4(a), which provided, “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” In addition, by failing to respond to repeated requests to discuss the status of the appeal, and by assuming without confirmation or explanation that the client did not wish to risk further proceedings should an appeal prove successful, Blise violated SCR 20:1.4(b), which provides, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
By failing to give reasonable notice to the client that Blise was abandoning the appeal, and by not allowing time for other counsel to be employed before the appeal deadlines expired, Blise violated former SCR 20:1.16(b), which provided, in part, “Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, ...” Finally, the court determined that Blise failed to refund the $5,000 portion of the fee not earned at the time he abandoned his representation, in violation of former SCR 20:1.16(d), which provided, in part, “Upon termination of a representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as ... refunding any advance payment of fee that has not been earned or incurred....”
Blise received a public reprimand in 2003.
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Disciplinary proceeding against Scott H. Fisher
In an order dated June 8, 2010, the supreme court revoked the law license of Scott H. Fisher, Menasha, and ordered Fisher to pay restitution of $9,001 to nine former clients and to pay the cost of the disciplinary proceedings. Disciplinary Proceedings Against Fisher, 2010 WI 45.
Fisher’s misconduct involved 10 separate client matters and included 55 counts of professional misconduct. In all the matters, Fisher accepted a fee, but he then abandoned the clients and quit his law practice. Fisher took no legal action on behalf of the clients, failed to return telephone calls, failed to refund unearned fees, did not advise the clients or the State Bar of Wisconsin of his location, and failed to respond to the OLR. Fisher apparently has left the United States.
The court found that Fisher violated the following professional conduct rules in one or more of the matters made a part of the proceeding: SCR 20:1.3, for neglecting legal matters entrusted to him; SCR
20:1.4(a)(3) and (4), for failing to communicate adequately with clients; SCR 20:1.5(b)(3), for failing to promptly respond to a client’s request for information concerning fees and expenses; SCR 20:1.15(b)(4m)b., for failing to account appropriately for advance fees; SCR 20:1.16(d), for failing to protect clients’ interests and failing to refund unearned fees on termination of representation; SCR 20:8.4(c), for conduct involving dishonesty, fraud, deceit, or misrepresentation; SCR 10.03(2), as enforced via SCR 20:8.4(f), for abandoning his law practice and the jurisdiction without notice of a change of address; and SCR 22.03(2) and (6), as enforced via SCR 20:8.4(h), for failing to respond to the grievances.
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Disciplinary proceeding against Joan M. Boyd
On May 27, 2010, the supreme court suspended the law license of Joan M. Boyd, Shawano, for 12 months, consecutive to a disciplinary suspension already imposed on her. Disciplinary Proceedings Against Boyd, 2010 WI 41. Boyd had filed a stipulation with the OLR in which she pleaded no contest to 11 counts of misconduct arising from four separate client matters.
Boyd represented various individuals in habeas corpus, postconviction, and sentence-modification matters. Boyd’s misconduct included failing to provide competent representation to clients, failing to proceed on behalf of clients, failing to consult with a client or consider the client’s wishes concerning the objectives of the representation, failing to inform clients of case developments or provide requested information, failing to provide information so as to permit a client to make an informed decision, and charging an unreasonable fee.
The court ordered Boyd to pay restitution to three clients, complete additional ethics coursework, and pay the cost of the disciplinary proceeding.
Boyd’s license was suspended for five months in 2008 and for six months in 2009 and had remained suspended from that matter. Boyd was publicly reprimanded in 2000 and in 2006.
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Disciplinary proceeding against Naomi E. Soldon
On April 16, 2010, the supreme court suspended the law license of Naomi E. Soldon, Shorewood, for six months. Disciplinary Proceedings Against Soldon, 2010 WI 27. Soldon and the OLR stipulated that she had committed eight counts of professional misconduct and that her license should be suspended for six months.
Regarding the first count, in May 2007, Soldon was arrested for allegedly committing retail theft. She was subsequently convicted of misdemeanor retail theft, and as a result, violated SCR 20:8.4(b).
Three counts of misconduct relate to an incident in November 2007 in which Soldon left a gas station without paying for gasoline. Soldon fled from state troopers and then crashed her car into a farm field. Soldon pleaded guilty to one count of felony fleeing and eluding an officer and one count of misdemeanor retail theft, which was dismissed and read in for sentencing purposes. Soldon was ordered to pay a fine of $6,430. Soldon’s fleeing and eluding an officer and driving off without paying for gasoline constituted two violations of SCR 20:8.4(b). Soldon failed to advise the OLR in writing of her criminal conviction within five days, in violation of SCR 21.15(5).
Three counts of misconduct arose out of two retail theft incidents, one in January 2008 and one in February 2008. During her arrest, Soldon gave police a false name and a series of false birth dates. Soldon was convicted of one count of misdemeanor retail theft. A count of misdemeanor resisting or obstructing an officer was dismissed and read in for sentencing purposes, as was the retail theft charge for the January 2008 incident. Soldon was sentenced to one year of probation, 30 days in jail (stayed), and fines and costs. By engaging in these two acts of retail theft and by providing a false name to the police, Soldon committed three violations of SCR 20:8.4(b).
The final count pertained to Soldon’s failure to cooperate with the OLR’s investigation of her conduct following the notification of her first retail theft conviction in December 2007. Soldon failed to respond to a series of letters from the OLR over six months, resulting in the OLR filing a motion with the supreme court seeking an order to show cause why Soldon’s license should not be temporarily suspended. The order to show cause was issued, and Soldon thereafter submitted a suitable written response to the OLR. These facts showed a willful failure to cooperate with an OLR investigation, in violation of SCR 22.03(2), enforced via 20:8.4(h).
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Disciplinary proceeding against John R. Loew
On March 30, 2010, the supreme court suspended the law license of John R. Loew, Milwaukee, for 60 days. Disciplinary Proceedings Against Loew, 2010 WI 23. Loew’s seven counts of misconduct arose from his handling of two probate matters.
In the first probate matter, a client hired Loew in 2005 and provided him with various original documents. Between late 2006 and early 2007, the client became dissatisfied and made repeated telephone calls to Loew requesting the return of the documents. Loew failed to respond. The client filed a grievance with the OLR. The OLR sent Loew several letters, to which he failed to respond. On Sept. 5, 2007, the OLR filed a motion with the supreme court requesting an order to show cause why Loew’s license should not be suspended for his willful failure to respond or cooperate in an OLR investigation. Loew failed to respond and on Oct. 11, 2007, the court granted the OLR’s motion and temporarily suspended Loew’s license. By failing to perform work on the estate matter, Loew violated SCR 20:1.3. By failing to respond to the client’s telephone calls, Loew violated former SCR 20:1.4(a) (effective before July 1, 2007) and current SCR 20:1.4(a). By failing to respond to the client’s requests for the return of her original documents, Loew violated former SCR 20:1.16(d) (effective before July 1, 2007) and current SCR 20:1.16(d). By failing to comply with the OLR’s investigation, contrary to SCR 22.03(2) and (6), Loew violated SCR 20:8.4(h).
In the second probate matter, a client hired Loew on Aug. 6, 2006 to complete estate and tax matters. The client sent Loew tax returns, bank statements, and other relevant documents. Loew performed some services, and the client paid his invoice in February 2007. In March 2007, the client received a letter from the IRS about the estate tax issues. The client faxed Loew the letter and asked Loew for assistance. The client subsequently left multiple voicemail messages for Loew with no response.
In April 2007, the client terminated Loew’s representation and hired successor counsel, who sent Loew various letters, email messages, and certified letters in an attempt to retrieve the client’s file and a refund. Loew responded with one email message but did not return the documents or provide the requested accounting and refund. The client and her new counsel filed a grievance with the OLR. Loew failed to respond to multiple letters from the OLR, later resulting in Loew’s temporary suspension. By failing to respond to the client’s and successor counsel’s telephone calls and letters, Loew violated former SCR 20:1.4(a) (effective before July 1, 2007). By failing to respond to the client’s and successor counsel’s requests for an accounting, a refund of unearned fees, and the return of the client’s files, Loew violated former SCR 20:1.16(d) (effective before July 1, 2007). By willfully failing to comply with the OLR’s investigation, contrary to SCR 22.03(2) and (6), Loew violated SCR 20:8.4(h).
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Hearing to reinstate Carlos Gamino
A public hearing will be held on Monday, Sept. 20, 2010, at 9 a.m. before referee Timothy L. Vocke in the courtroom of the District II Court of Appeals, 2727 N. Grandview, Suite 300, Waukesha, on the petition of Carlos Gamino, Waukesha, 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 Gamino, 2008 WI 107, 314 Wis. 2d 544, 753 N.W.2d 521, the supreme court suspended Gamino’s law license for 18 months, based on Gamino’s conflict of interest in representing both parties in an adverse divorce proceeding; his failure to keep one party reasonably informed in the matter; his incompetent representation of one party; his improper continued representation of the other party (whose interests were materially adverse to those of the former client); and his failure to provide the former client’s file to successor counsel.
To be reinstated, Gamino has the burden of substantiating by clear, satisfactory, and convincing evidence that 1) he has the moral character to practice law in Wisconsin, 2) his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, 3) all representations in his reinstatement petition are substantiated, and 4) he has complied fully with the terms of the order of suspension and with SCR 22.26.
Relevant information may be provided to or obtained from OLR investigator Kay Sievers or OLR litigation counsel Bill J. Weigel, 110 E. Main St., Suite 315, Madison, WI 53703, or (877) 315-6941.
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Public reprimand of Tim Osicka
The OLR and Tim Osicka, Schofield, entered into an agreement for imposition of a public reprimand pursuant to SCR 22.09(1). A supreme court-appointed referee thereafter approved the agreement, and issued the public reprimand on June 21, 2010, in accordance with SCR 22.09(3).
The reprimand was based on misconduct that occurred in two separate matters. In the first matter, Osicka represented a man in a divorce. The man signed a retainer agreement and paid Osicka a fee of $1,500. The retainer agreement stated that the initial retainer of $1,500 was nonrefundable and that the billing rate was $150 per hour. Osicka deposited the retainer into his operating account.
During the representation, Osicka did not provide the client with a copy of certain discovery responses nor did Osicka discuss in detail with the client the significance of the marital waste disclosed in the responses. From the client’s standpoint, the financial information disclosed by his spouse was highly significant and Osicka’s failure to inform him of the information undermined his case. The client also claimed that he received no assurances from Osicka that interrogatories would be handled in a timely and appropriate fashion.
Osicka and opposing counsel agreed to jointly retain a real estate appraiser to appraise two properties owned by Osicka’s client. Although it appears Osicka discussed the possibility of an appraisal with his client in general terms, Osicka did not give him a copy of the letter setting forth the terms of the appraisal.
In September 2007, the client terminated Osicka’s services and requested a refund. Osicka did not provide a refund nor did he provide an accounting to the client.
The referee determined that despite language in the retainer agreement stating that the fee was “non-refundable,” the $1,500 paid by the client constituted an advance fee and was not based on availability to perform services. Osicka’s failure to deposit the client’s advance fee into a client trust account violated former SCR 20:1.15(b)(4) (effective before July 1, 2007), which stated, “Unearned fees and advanced payment of fees shall be held in trust until earned by the lawyer, and withdrawn pursuant to SCR 20:1.15(g)....”
By failing to communicate fully and effectively with the client regarding the nature and extent of discovery received in the course of litigation and failing to keep the client fully apprised of developments in the case, Osicka violated former SCR 20:1.4(a) (effective before July 1, 2007), which stated, “A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information” and current SCR 20:1.4(a)(2) and (3), which state, “A lawyer shall ... [r]easonably consult with the client about the means by which the client’s objectives are to be accomplished…,” and “A lawyer shall … [k]eep the client reasonably informed about the status of a matter….”
After receiving notice of termination, Osicka failed to either refund the unearned portion of the advance fee or provide an accounting to the client, in violation of SCR 20:1.16(d), which states, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as ... refunding any advance payment of fee or expense that has not been earned or incurred....”
In the second matter, Osicka’s law license was suspended from Oct. 31, 2008 through Nov. 24, 2008, for nonpayment of mandatory dues to the State Bar of Wisconsin and for failure to submit a trust account certification to the State Bar.
During this time, Osicka entered an appearance in a felony case, filed motions and appeared in court, entered an appearance in a paternity case, appeared in a pretrial matter, worked on a stipulation in a family law matter, met with a client’s mother, and met with another client to prepare a stipulation.
Osicka asserted he forwarded a check for his dues and his signed trust account certification to the State Bar on Nov. 3, 2008. There was no indication that the State Bar received Osicka’s letter, and the check was not negotiated.
By engaging in the practice of law between Oct. 31, 2008, and Nov. 21, 2008, when his law license was suspended for nonpayment of State Bar dues, Osicka violated SCR 10.03(6), which states, “If the annual dues or assessments of any member remain unpaid 120 days after the payment is due, the membership of the member may be suspended in the manner provided in the bylaws; and no person whose membership is so suspended for nonpayment of dues or assessments may practice law during the period of the suspension.” SCR 10.03(6) is enforceable under the Rules of Professional Conduct via SCR 20:8.4(f), which states, “It is professional misconduct for a lawyer to violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers.”
Osicka was publicly reprimanded in 2002 and in 2009.
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Hearing to reinstate David V. Jennings III
A public hearing will be held on Tuesday, Oct. 12, 2010, at 9 a.m. before referee Christine Harris Taylor at the Milwaukee Bar Association, 424 E. Wells St., Milwaukee, on the petition of David V. Jennings III, Milwaukee, 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 Jennings, 172 Wis. 2d 638, 493 N.W.2d 375 (1993), the supreme court revoked Jennings’s law license based on misconduct involving conversion of funds from two companies he represented in Chapter 11 bankruptcy proceedings.
In 1999, Jennings filed a petition for reinstatement of his license, which he later withdrew. In 2007, Jennings filed a second petition for reinstatement. In 2009, the supreme court denied the petition. Disciplinary Proceedings Against Jennings, 2009 WI 26, 316 Wis. 2d 6, 762 N.W.2d 648.
To be reinstated, Jennings has the burden of substantiating by clear, satisfactory and convincing evidence that 1) he has the moral character to practice law in Wisconsin, 2) his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, 3) all representations in his reinstatement petition are substantiated, and 4) 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 assistant litigation counsel Julie M. Scott, 110 E. Main St., Suite 315, Madison, WI 53703, or (608) 267-2024.
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