Vol. 85, No. 10, October 2012
Public Reprimand of Tina F. Gouty-Yellow
The Office of Lawyer Regulation (OLR) and Tina F. Gouty-Yellow, Shawano, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A Wisconsin Supreme Court-appointed referee approved the agreement and issued the public reprimand on Aug. 8, 2012, in accordance with SCR 22.09(3).
On or about Dec. 31, 2008, Gouty-Yellow began representing a woman in an ongoing divorce case. The petitioner, the client's husband, appeared pro se throughout the divorce proceedings and was first represented by counsel after the judgment of divorce was entered.
The final hearing took place on June 2, 2009. At the beginning of the hearing, Gouty-Yellow read into the record an oral agreement between the parties concerning custody and placement. Gouty-Yellow stated the parties would continue with joint child custody, and placement would occur upon reasonable notice. The judge accepted this arrangement and ordered it incorporated into the judgment.
Gouty-Yellow and her office staff prepared the Findings of Fact, Conclusions of Law, and Judgment of Divorce. On Aug. 3, 2009, Gouty-Yellow signed the cover letter that accompanied a copy of her proposed findings and judgment and transmitted them to the judge for his signature and also transmitted a copy to the client's ex-husband.
The findings and judgment that Gouty-Yellow submitted to the court differed in several key respects from the custody and placement agreement that Gouty-Yellow had read into the record at the final divorce hearing and that the court ordered.
The client's ex-husband hired an attorney, who wrote to Gouty-Yellow and stated that the ex-husband believed there was a discrepancy between the placement provisions ordered at the final divorce hearing and the sole legal custody and supervised placement provisions in the judgment.
On March 8, 2010, the court abrogated and struck the erroneous language from the judgment.
Gouty-Yellow violated SCR 20:3.3(a)(1) by submitting to the court proposed Findings of Fact, Conclusions of Law, and Judgment of Divorce that contained erroneous custody and placement terms, after having recited the correct custody and placement terms on the record in open court and after claiming she had lost her divorce hearing notes, and being unsure of the veracity of the submitted documents, but nevertheless submitting them.
Gouty-Yellow violated SCR 20:8.4(c) by failing to obtain a transcript of the divorce hearing, failing to review the notes from the hearing on the Wisconsin Circuit Court Access website, and acting with reckless disregard as to whether the documents submitted to the court were accurate.
Gouty-Yellow had no prior discipline.
Public Reprimand of Marc G. Kurzman
The OLR and Marc G. Kurzman, Minneapolis, entered into an agreement for the imposition of a public reprimand as discipline reciprocal to a July 16, 2010, public reprimand imposed on Brandt's Minnesota law license, that also placed him on probation for two years in Minnesota with terms and conditions on his practice. A supreme court-appointed referee approved the agreement, and issued the public reprimand on Aug. 14, 2012, in accordance with SCR 22.09(3). Public Reprimand of Kurzman, 2012-OLR-12.
The Minnesota public reprimand arose out of Kurzman's misconduct in violation of rule 1.15(a), (b), (c)(3), (d), and (f) of the Minnesota Rules of Professional Conduct. Kurzman transferred $200,000 from his trust account into accounts in financial institutions that had not been approved as depositories for Minnesota client funds; failed to prepare required trust account trial balances and reconciliations, which resulted in his trust account client subsidiary ledgers containing several client balance errors; and allowed a $10,000-$12,000 balance of earned fees to remain in the account for at least six months, thus commingling his own funds with clients' funds.
Kurzman had no prior Wisconsin discipline.
Public Reprimand of John N. O'Brien
John N. O'Brien, Delavan, was publicly reprimanded in 1982 and 1990 and suspended for 60 days in 1991. On July 12, 2012, a supreme court-appointed referee approved an agreement for a consent public reprimand based on the following conduct.
On Feb. 17, 2003, a woman hired O'Brien to represent her in a divorce and paid him $600. O'Brien never commenced a divorce action. From 2003 to 2009, the woman occasionally spoke with O'Brien, who assured her that he would move forward.
In May and June 2009, the woman wrote to O'Brien asking for a refund of her fee. The woman stated that she also called O'Brien's office five times in 2010. On Dec. 10, 2010, she filed a grievance.
In February 2011, O'Brien sent a check for $300 to the woman and indicated it was in settlement of her claim for her fee. The woman did not cash the check. Instead, she filed a claim with the Wisconsin Lawyers' Fund for Client Protection (the fund), which approved payment of the entire $600. O'Brien made restitution of $600 to the fund.
By failing to pursue the divorce for more than six years after he was hired for that purpose, O'Brien violated SCR 20:1.3, which states, "A lawyer shall act with reasonable diligence and promptness in representing a client."
By failing to respond to the client's requests for information in her letters and phone calls from May 2009 to February 2011, O'Brien violated SCR 20:1.4(a)(4), which states, "A lawyer shall ... (4) promptly comply with reasonable requests by the client for information."
By failing to refund the $600 fee he had not earned, O'Brien violated 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 giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred."