Vol. 84, No. 11, November 2011
Public reprimand of William A. Boulware
The Office of Lawyer Regulation (OLR) and William A. Boulware, Chicago, entered into an agreement for 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 Aug. 22, 2011, in accordance with SCR 22.09(3).
From 2002 to 2005, Boulware acted as the legislative counsel for a Native American tribe. In that capacity, Boulware worked with various governmental bodies, lobbyists, and private companies, including private developers, and advised the tribe’s legislature on matters such as land purchases and gaming developments.
In March 2005, Boulware offered his resignation. It was accepted, and Boulware’s last day of employment with the tribe was set as June 30, 2005. Sometime before June 2005, Boulware was in contact with the chief operating officer (COO) of a private development company involved in one of the tribe’s development projects. Boulware and the COO discussed Boulware’s employment with a new company that was being formed to deal exclusively with Native American tribe property developments. Boulware did not inform the tribe of these contacts but told several coworkers and tribe members that he was looking for a job in Europe.
Some of the contacts between Boulware and the COO were sent via email before June 30, 2005, and were recovered from a tribe computer that Boulware used for tribe work. In those emails, Boulware expressed his eagerness to begin working for the new company as soon as possible, although he also said he wanted to keep a low profile to avoid an adverse reaction from the tribe.
In a June 14, 2005, email Boulware sent in response to a request from the COO for Boulware to accompany him on a trip to meet with another Native American tribe on the weekend of June 18, 2005, Boulware told the COO that he would not be available on that weekend, but that “I have managed to arrange to be in ‘Chicago’ Friday, June 24 and Monday, June 27, though on Monday there is a meeting with a Vice President of the Tribe where I have to be accessible.”
On June 29, 2005, Boulware updated his State Bar of Wisconsin membership account, indicating his new position as the “Director of Development” of the new development company and giving the address of the company as his new business address. June 30, 2005, was Boulware’s last day of work for the tribe. After a break for traveling, he began working for the new development company.
In the investigation of the tribe’s grievance, the OLR requested that Boulware directly address the emails relating to his discussions with the developer while still employed by the tribe. As part of that request, the OLR twice sent Boulware copies of the emails between Boulware and the developer, as well as a copy of the email from the State Bar acknowledging the update of his employment status. In three separate responses to the OLR, Boulware made several statements to the effect that he neither sought a position nor worked for the new development company before July 1, 2005, the day after his employment with the tribe ended.
Although Boulware admitted to the OLR that the emails made it look as if he had secured employment with the developer before leaving his employment with the tribe, he said they did not contradict his repeated statements that he had not sought employment with the developer before June 30, 2005, because these discussions concerned Boulware’s self-described role as a “consultant.” Boulware did not offer any further explanation of this consulting work. Likewise, Boulware did not offer any explanation concerning the meeting with the other Native American tribe that the COO asked him to attend before the end of his employment with the tribe.
By communicating with and offering advice to another party about matters involving his representation of the tribe, while still employed by the tribe, without the tribe’s knowledge and consent, Boulware violated former SCR 20:1.7(b), applicable to conduct occurring 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 or to a third person, or by the lawyer’s own interests.”
By negotiating for and accepting employment with the new development company while still a tribe employee, Boulware violated former SCR 20:1.11(c)(2), applicable to conduct occurring before July 1, 2007, which stated, “Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not … (2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.”
By telling tribe members and employees that he intended to pursue employment in Europe and in failing to disclose to the tribe that he was, in fact, negotiating to secure employment with the new development company, Boulware violated SCR 20:8.4(c), which states, “It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
By making several statements in response to the OLR grievance investigation that were contradicted by contemporaneous emails, and in failing to fully disclose all the facts and circumstances pertaining to the alleged misconduct, Boulware violated SCR 22.03(6), which states, “In the course of the investigation, the respondent’s willful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent’s misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.” SCR 22.03(6) is enforced under the Rules of Professional Conduct via SCR 20:8.4(h).
Boulware had no prior discipline.
Disciplinary proceeding against Kristine A. Peshek
On June 24, 2011, the Wisconsin Supreme Court ordered that the Wisconsin law license of Kristine A. Peshek, Beloit, be suspended for 60 days as discipline reciprocal to a May 18, 2010, Illinois Supreme Court order suspending Peshek from the practice of law for 60 days. Disciplinary Proceedings Against Peshek, 2011 WI 47.
The Illinois suspension arose out of Peshek’s misconduct in violation of Illinois Rules of Professional Conduct (IRPC) 1.2(g), 1.6(a), 3.3(a)(2), 8.4(a)(4), and 8.4(a)(5) and Illinois Supreme Court Rule 770. Peshek published a blog with information related to her legal work from June 2007 to April 2008. The public blog contained confidential information about clients and derogatory comments about judges and had information sufficient to identify those clients and judges using public sources. Also, Peshek failed to inform a court of a client’s misstatement of fact. The client told a judge, on the record, that she was not using drugs. Later, the client informed Peshek that she was using methadone at the time of her statement in court. Peshek did not inform the judge of this fact or correct the client’s misstatement.
Peshek had no prior Wisconsin discipline.
Disciplinary proceeding against Eric Arthur Forstrom
On Sept. 20, 2011, the supreme court suspended the Wisconsin law license of Eric Arthur Forstrom, Huntington Beach, Calif., for one year as discipline reciprocal to that imposed against Forstrom’s California law license.
The California suspension arose out of Forstrom’s conduct related to a hit-and-run automobile accident, including inaccurately reporting to police that his car had been stolen and initiating an insurance claim in the matter. In California, Forstrom entered a no-contest plea to a charge of felony insurance fraud, which was later reduced to a misdemeanor and ultimately expunged.
Forstrom had no prior discipline in Wisconsin or California.
Disciplinary proceeding against Michael O. Erspamer
On Aug. 26, 2011, the supreme court suspended the license of Michael O. Erspamer for 60 days, imposed conditions on his reinstatement, and ordered him to pay the cost of the disciplinary proceeding. In re Disciplinary Proceedings Against Erspamer, 2011 WI 85.
The suspension was based on two matters, which were assigned to special investigators acting on behalf of the Lawyer Regulation System (LRS) pursuant to SCR 22.25 because Erspamer was a member of a district committee.
In the first matter, Erspamer represented D.N. on a worker’s compensation claim. The claim was settled in February 2007. The administrative law judge approved the settlement, which required the defendant to fund D.N.’s future medical expenses. Between March 2007 and June 2008, Erspamer and counsel for the defendant attempted to negotiate the terms of the fund. Erspamer kept D.N. informed of the status of negotiations during this time.
From July 2008 until April 2009, Erspamer did not respond to repeated attempts by D.N. and the defendant’s counsel to obtain information and assistance in completing the medical-expense-funding agreement.
On May 5, 2009, Erspamer sent a letter to D.N. in which he advised D.N. that if she wished to pursue the matter, she should hire a different attorney because she had filed a grievance against him.
The referee concluded that the LRS had proved two counts of professional misconduct related to Erspamer’s representation of D.N. First, by failing to provide timely representation to complete a funding agreement, Erspamer failed to act with reasonable diligence and promptness, in violation of SCR 20:1.3. Second, Erspamer violated SCR 20:1.4 by failing to keep his client reasonably informed about the status of her legal matter.
The second matter related to Erspamer’s representation of R.H. and the investigation of R.H.’s grievance. R.H. hired Erspamer in October 2007 to pursue an appeal of a denial of Social Security benefits. R.H. met with Erspamer twice. He attempted to telephone Erspamer’s law office several times but never was able to reach Erspamer. He subsequently learned that the telephone number for the law office had been disconnected. R.H. also tried repeatedly to reach Erspamer at his home telephone number, but no one ever answered the telephone.
R.H. filed a grievance against Erspamer in April 2009. At that point he had not heard from Erspamer for approximately one year. After learning that R.H. had filed a grievance and was seeking the return of his file and records, Erspamer returned the file to R.H. According to R.H., his review of the records indicated that Erspamer had not done any significant work on the matter. R.H. was able to hire new counsel to pursue the appeal.
In September 2009, the special investigator wrote a letter asking Erspamer to contact him at his office so that they could discuss the R.H. grievance. Erspamer responded with a letter in which he stated that he wanted to communicate by letter. Despite the special investigator’s repeated efforts to speak with Erspamer, Erspamer would not do so.
The referee concluded that Erspamer had engaged in three counts of professional misconduct. First, by failing to provide timely representation to R.H., Erspamer violated SCR 20:1.3. Second, Erspamer’s failure to communicate with the client for nearly a year regarding the client’s legal matter constituted a violation of SCR 20:1.4. Finally, by repeatedly refusing to speak with the investigator on the telephone, Erspamer violated SCR 21.15(4).
The supreme court adopted the referee’s findings of fact and conclusions of law. Erspamer had no prior discipline.
Reinstatement of Thomas E. Warmington
On Sept. 20, 2011, the supreme court reinstated, with conditions, the law license of Thomas E. Warmington. Disciplinary Proceedings Against Warmington, 2011 WI 87.
Warmington was first licensed to practice law in 1977 and practiced in Brookfield. His license was revoked effective Oct. 1, 1997, based on misconduct relating to representation of five separate clients. Warmington’s misconduct consisted of several instances of converting client funds to his own use, failing to hold client funds in trust, failing to diligently represent clients, and failing to communicate with clients. Before his revocation, Warmington had been publicly reprimanded on two occasions, once in 1991 and again in 1995. Warmington filed his petition for reinstatement in April 2010.
Following a public hearing in January 2011, the referee filed a report recommending the reinstatement of Warmington’s license based on findings that Warmington had met his burden of proving by clear and convincing evidence that he has the character to practice law in Wisconsin, can act in conformity with the standards imposed by the members of the bar, can be safely recommended to the legal profession, and has complied with the conditions of his revocation and all applicable supreme court rules.
The referee did, however, express concerns about Warmington returning to solo private practice given his disciplinary history and problems with ethical law-office management. The referee indicated that she would have been hesitant to recommend reinstatement if Warmington intended to return to solo private practice. The referee concluded that Warmington’s plan for working after reinstatement seemed to reflect a proper understanding of and attitude toward the standards that are imposed on members of the bar and his intent to meet them.
The court adopted the referee’s findings and determined that Warmington’s petition for reinstatement should be granted, subject to his payment of the cost of the reinstatement proceeding and imposition of conditions designed to address concerns about his return to solo private practice. The conditions require that for three years following his reinstatement, Warmington cannot practice law in a solo private practice, and if he practices in a partnership or law firm setting, he must practice under the direct supervision of a licensed attorney acceptable to and approved by the OLR.
Public Reprimand of Jane Krueger Smith
The OLR and Jane Krueger Smith, Oconto, entered into an agreement for 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. 15, 2011, in accordance with SCR 22.09(3).
Sometime in the summer of 2008, a husband and wife hired Krueger Smith to represent them in an attempt to adopt their niece’s daughter. As part of this representation, Krueger Smith was to obtain a termination of parental rights (TPR) from the minor child’s father, as well as from the niece. At Krueger Smith’s initial meeting with the clients, they informed her that the birth father was on probation and that he was in substantial arrears for child support. Krueger Smith received an address for the father from the Oconto County probation office. Over four months’ time, she sent two letters to the birth father at the address and prepared rough drafts of TPR forms. Krueger Smith did not receive any response from the birth father. In February 2009, the husband phoned Krueger Smith to express the couple’s frustration regarding the lack of progress in locating the birth father.
Shortly after this telephone call, Krueger Smith contacted the birth father through the Brown County probation office. The birth father expressed reluctance about relinquishing his parental rights but said he was willing to consider a termination if it could be coupled with a forgiveness of his child support arrears. Krueger Smith informed the clients about the birth father’s wishes but also told them that she could not negotiate with the state on the birth father’s behalf regarding the arrearage.
No further actions were taken on the matter until May 2009. Between May 11 and 18, 2009, the husband made several calls to Krueger Smith’s office requesting information on the status of the adoption. The husband never spoke with Krueger Smith but was repeatedly told by Krueger Smith’s assistant that negotiations with the birth father were going to take place soon but had not yet begun. On May 19, 2009, the couple met with another attorney to seek new counsel for the adoption. That attorney (successor counsel) informed them that she could not do anything until they terminated their relationship with Krueger Smith. On May 26, 2009, the clients hand delivered to Krueger Smith’s office a letter notifying her of the termination of their attorney-client relationship as of May 27, 2009 and also stating that the clients would come to the office to pick up their file on May 29, 2009.
On May 29, 2009, when the wife arrived at the office to pick up the file, Krueger Smith’s assistant told her that the file was not at the office. They agreed that the file would be hand delivered to the wife’s workplace the following day. However, no file was delivered that day. The next week, the husband called Krueger Smith’s office to ask about the file. The assistant again said that the file would be delivered, and again it was not. The clients also requested that Krueger Smith fax them a confirmation of the termination of their attorney-client relationship, but they did not receive a fax.
On June 11, 2009, successor counsel sent a letter to Krueger Smith requesting confirmation of the termination of Krueger Smith’s relationship with the couple and requesting that the file be sent to them by June 25, 2009. No reply to this letter was received, and on June 30, 2009, successor counsel made the first of several telephone calls to Krueger Smith’s office reiterating the couple’s request for the file. Each time, Krueger Smith’s assistant told successor counsel that the file would be sent. However, nothing was received until Krueger Smith wrote to successor counsel on July 20, 2009. Krueger Smith summarized the adoption matter, apologized for the delay, and enclosed a $600 check made payable to the wife, which represented a full refund of the advance fee paid to Krueger Smith in the matter. She did not refer to the file, and no file has ever been turned over to either the couple or successor counsel.
On Aug. 26, 2009, the couple filed a grievance against Krueger Smith, complaining that she had failed to work diligently on the adoption matter and that she had failed to respond to their requests for return of their file. Krueger Smith responded to the grievance listing the work she had done on their behalf. Krueger Smith told OLR Intake that her office did in fact turn over the file to the couple. However, in her first written response to the OLR investigation, Krueger Smith said that the husband came to her office in May or June of 2009 and that the file was not delivered to him because she had not yet made a copy of it.
In later correspondence to the OLR, Krueger Smith said that her assistant told her that the file was hand delivered to the wife, but that he failed to get a receipt for the file. Successor counsel’s contemporaneous notes of her conversations with Krueger Smith’s assistant indicate that he told successor counsel they still had the file and that they would send it to her. According to successor counsel’s notes, Krueger Smith’s assistant also said that “his conscience got the best of him and he has a pile of stuff ready to send.”
By failing to timely follow through on information that might lead to locating the birth father and in otherwise failing to timely advance the interests of the clients, Krueger Smith violated SCR 20:1.3, which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
By failing to turn over her case file in the adoption matter to either the couple or to successor counsel, notwithstanding multiple requests for the file made by the couple and successor counsel, Krueger Smith violated SCR 20:1.16(d), which states in relevant part, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as … surrendering papers and property to which the client is entitled.…”
By representing to the OLR that return of the couple’s case file had been effectuated by her assistant, in the absence of evidence to support that assertion and in the face of credible evidence to the contrary, Krueger Smith violated SCR 22.03(6), which states, “In the course of the investigation, the respondent’s willful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent’s misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.” SCR 22.03(6) is enforced under the Rules of Professional Conduct by SCR 20:8.4(h).
Krueger Smith has a prior public reprimand, imposed in March 2009 for violations of SCR 20:1.3, 20:1.4(a) and (b), 20:8.4(f), 21.15(4), and 22.03(6) that occurred in the course of her postconviction representation of three clients.