Public Discipline
The Office of Lawyer Regulation (OLR), an agency of the Wisconsin Supreme Court, provides these summaries. The OLR assists the court in supervising the practice of law and protecting 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. Find the full text of these summaries at www.wicourts.gov/olr.
Petition for Reinstatement of Jane A. Edgar
On Wednesday, Feb. 10, 2016 at 10 a.m., a public hearing will be held before referee Jonathan V. Goodman at Brown & Jones Reporting Inc., 735 N. Water St., Suite M185, Milwaukee, on the petition of Jane A. Edgar, Milwaukee, to reinstate her 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.
On Oct. 26, 1999, the Wisconsin Supreme Court suspended Edgar’s Wisconsin law license for two years, commencing March 22, 1999, for misconduct consisting of conversion of client funds, commingling her own funds with client funds, and falsely certifying she had and maintained a trust account.
On May 28, 2003, the supreme court suspended Edgar’s Wisconsin law license for one year, retroactive to March 22, 2001, for misconduct consisting of failing to take steps to protect a client’s interests, failing to keep a client reasonably informed, failing to act with reasonable diligence, failing to cooperate with Office of Lawyer Regulation (OLR) grievance investigations, failing to render an accounting of an advance fee, practicing law while her license was administratively suspended, and failing to obtain a written conflict waiver. Edgar previously petitioned for reinstatement in 2010, but her petition was denied in 2012.
To be reinstated, Edgar has the burden of substantiating by clear, satisfactory, and convincing evidence that 1) she has the moral character to practice law in Wisconsin, 2) her 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 her reinstatement petition are substantiated, and 4) she has complied fully with the terms of the orders of suspension or revocation and with SCR 22.26.
Relevant information may be provided to or obtained from OLR investigator Sarah Peterson or OLR assistant litigation counsel Julie M. Spoke, 110 E. Main St., Suite 315, Madison, WI 53703. The OLR’s toll-free telephone number is (877) 315-6941. Attorney Spoke’s direct number is (608) 261-8295.
Reinstatement Proceeding Regarding Nancy A. Schlieve
On July 15, 2015, the supreme court denied the reinstatement petition of Nancy A. Schlieve, Eau Claire, and ordered Schlieve to pay the $20,367.49 cost of the reinstatement proceeding. In re Medical Incapacity Proceedings Against Schlieve, 2015 WI 80. Schlieve failed to meet her burden under SCR 22.36(6) to show by clear, satisfactory, and convincing evidence that she is currently fit to resume the practice of law.
In 1997, the court imposed conditions on Schlieve’s license directed toward her rehabilitation from alcoholism. In 1998, the court indefinitely suspended Schlieve’s license due to medical incapacity resulting from alcoholism. Following a suspension for medical incapacity, an attorney seeking reinstatement must show both that the medical incapacity has been removed and that the petitioner is fit to resume the practice of law. In 2006, Schlieve also filed a reinstatement petition, which was denied.
Based on Schlieve’s interactions with WisLAP, two positive drug screens showing codeine in her system, and her inability to complete sustained monitoring for a period of at least 12 months, there was no objective verification that Schlieve does not still suffer from a medical incapacity.
Disciplinary Proceeding Against Joseph M. Capistrant
The supreme court suspended the law license of Joseph M. Capistrant, Plymouth, Minn., for 90 days, effective Sept. 17, 2015. The suspension was based on eight counts of professional misconduct arising in connection with Capistrant’s work in seven legal matters while Capistrant’s Wisconsin law license was suspended. The court also ordered Capistrant to pay the $574.94 cost of the disciplinary proceeding, in which Capistrant defaulted. Disciplinary Proceedings Against Capistrant, 2015 WI 88.
Capistrant’s Wisconsin law license was suspended during certain periods in the years 2010-2012 for his failure to comply with mandatory CLE reporting requirements. During those times, Capistrant practiced law on behalf of various clients despite the fact that his Wisconsin law license had been suspended, contrary to SCR 31.10(1) and SCR 22.26(2), enforced via SCR 20:8.4(f).
Capistrant also failed to advise clients, courts, and opposing counsel of the suspension of his Wisconsin law license and thereby failed to explain matters to the extent reasonably necessary to permit clients to make an informed decision regarding representation, contrary to SCR 20:1.4(b); engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, contrary to SCR 20:8.4(c); failed to notify clients by certified mail of his license suspension and failed to advise them to seek legal advice elsewhere, contrary to SCR 22.26(1)(a) and (b), enforced via SCR 20:8.4(f); and failed to provide written notification of his suspension and inability to act as an attorney to the courts and to opposing counsel, contrary to SCR 22.26(1)(c), enforced via SCR 20:8.4(f).
Capistrant failed to diligently pursue certain cases, including matters that he allowed to languish after the circuit court or opposing counsel voiced concerns about his law license status, thereby failing to act with reasonable diligence and promptness in several client matters, contrary to SCR 20:1.3.
Capistrant failed to keep his clients reasonably informed and to explain matters to the extent reasonably necessary to permit clients to make an informed decision regarding representation, contrary to SCR 20:1.4(a)(3) and (b).
Capistrant used letterhead that stated he was “admitted in the State of Wisconsin” when his Wisconsin law license was suspended, thereby making false or misleading communications about himself and his legal services, contrary to SCR 20:7.1(a) and SCR 20:7.5(a).
Capistrant had no prior discipline.
Disciplinary Proceedings Against David J. Bartz
The supreme court suspended the law license of David J. Bartz, Madison, for 60 days, effective June 25, 2015. Disciplinary Proceedings Against Bartz, 2015 WI 61. Bartz stipulated to five counts of misconduct charged in the OLR’s disciplinary complaint and to the sanction sought by the OLR. Because Bartz entered into a comprehensive stipulation before appointment of a referee, the OLR did not seek costs and none were imposed.
In November 2009, a client hired Bartz to represent him in a personal injury claim concerning a car accident. The client had been treated by a chiropractor. In April 2010, Bartz settled the claim for $5,021. The settlement statement provided that Bartz’s fee would be $753.15, the client would receive $996.85, and the chiropractor’s balance was $3,271. The settlement statement required Bartz to hold in his trust account the funds owed the chiropractor while he tried to negotiate a lower payout.
On April 7, 2010, Bartz deposited the $5,021 settlement check into his trust account. On April 9, 2010, Bartz paid the client $996.85 and paid himself $755. On April 14, 2010, the chiropractor agreed to accept $2,191.80 to settle the bill. Bartz never paid the chiropractor.
Between April 15 and May 14, 2010, Bartz disbursed six trust account checks payable to himself, leaving no funds in trust attributable to either the chiropractor or the client. In late October 2011, Bartz told the client that he would pay the chiropractor’s bill, but he never did. On Oct. 31, 2011, Bartz’s license to practice law was suspended for his failure to pay annual State Bar dues. Bartz never informed the client of his suspension. Bartz’s law license was suspended again in 2012 for Bartz’s failure to comply with CLE requirements.
In 2012, the client filed a grievance against Bartz with the OLR, which sent Bartz two letters notifying him that he was required to respond to the grievance. Bartz never responded. As a result, the court temporarily suspended Bartz’s Wisconsin law license due to his failure to cooperate with the OLR.
By failing to promptly disburse funds to the chiropractor that the chiropractor was entitled to receive, Bartz violated SCR 20:1.15(d)(1); by failing to continue to hold in trust $3,271 of settlement proceeds belonging to others, Bartz violated SCR 20:1.15(b)(1); by misappropriating funds held in trust, Bartz violated SCR 20:8.4(c); by failing to inform the client that his Wisconsin law license had been suspended, Bartz violated SCR 22.26, enforceable via SCR 20:8.4(f); and by failing to respond to the OLR’s written requests for information regarding its investigation of the grievance, Bartz violated SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h).
In September 2012, the Wisconsin Lawyers’ Fund for Client Protection paid Bartz’s client $2,191.80 as partial reimbursement for the funds Bartz had misappropriated. The court ordered Bartz to make restitution of $1,081.05 to the client and $2,191.80 to the Wisconsin Lawyers Fund for Client Protection.
Bartz previously received a private reprimand in 1999.
Public Reprimand of John Miller Carroll
The OLR and John Miller Carroll, Appleton, agreed to the 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. 2, 2015, in accordance with SCR 22.09(3). Public Reprimand of Carroll, 2015 WI 7.
A woman hired Carroll to represent her regarding an operating while intoxicated (OWI) matter. The client paid Carroll $2,500, pursuant to a written fee agreement. In October 2013, due to the client’s prior OWI, the arresting officer issued a new citation for an OWI-second criminal matter, with a return date of Jan. 23, 2014.
Carroll told the client that she would not need to appear at the initial appearance because she had signed an authorization for Carroll to appear on her behalf.
On Dec. 19, 2013, the supreme court suspended Carroll’s license for five months effective Jan. 23, 2014, in an unrelated matter. On Jan. 17, 2014, the court changed the effective date of Carroll’s suspension to Feb. 1, 2014.
Between Jan. 13, 2014 and Jan. 23, 2014, Carroll asked another attorney to appear at the client’s initial appearance to request an adjournment because of Carroll’s suspension. On Jan. 22, 2014, the client called Carroll to ask questions about the initial appearance. Carroll did not tell her about the suspension, that he was not going to appear at the initial appearance, or that another attorney would seek an adjournment.
On Jan. 23, 2014, Carroll went to the courthouse, but he did not go into the courtroom or appear on the client’s behalf. Later, the client reviewed the online CCAP record and learned for the first time that another attorney had appeared and that Carroll’s license had been suspended.
The client terminated the representation and requested a full refund. Carroll provided the client with only a partial refund, and the resulting fee dispute was resolved through a small-claims action filed by the client. By failing to appear at the initial appearance when his license was active and in good standing on that date, Carroll violated SCR 20:1.3. By failing to tell the client that he would not be appearing on her behalf and that he had asked another attorney to request an adjournment, Carroll violated SCR 20:1.4(a)(3) and (4).
By failing before Jan. 23, 2014, to tell his client about his suspension, Carroll violated SCR 20:1.4(b). By charging the client for going to the courthouse when Carroll did not make an appearance and had already arranged for another attorney to seek an adjournment, Carroll charged an unreasonable fee in violation of SCR 20:1.5(a).
By making misrepresentations to the client, Carroll violated SCR 20:8.4(c). By making misrepresentations to the OLR, Carroll violated SCR 22.03(6), enforced via SCR 20:8.4(h).
Carroll received private reprimands in 1992 and 1997 and public reprimands in 1999 and 2003, and his law license was suspended for one year in 2002 and for five months in 2013.
Disciplinary Proceedings Against Charles A. Boyle
In a Sept. 16, 2015 decision, the supreme court publicly reprimanded Charles A. Boyle, Chicago. Disciplinary Proceedings Against Boyle, 2015 WI 90. The court further ordered Boyle to pay $9,272.04, which represented 60 percent of the total cost of the disciplinary proceeding.
In connection with a civil action filed in Racine County Circuit Court, Boyle practiced law while his Wisconsin law license was administratively suspended, in violation of SCR 10.03(6), SCR 31.10(1), SCR 22.26(2), and SCR 20:8.4(f). Boyle made multiple false statements of fact to the circuit court, in violation of SCR 20:3.3(a)(1). Boyle made other misrepresentations that violated SCR 20:8.4(c). Boyle also failed to maintain proper respect due to courts and judicial officers, in violation of SCR 40.15 and SCR 20:8.4(g). Finally, Boyle violated SCR 22.03(6) and SCR 20:8.4(h) by making false statements to the OLR during its investigation into his conduct.
Boyle had no prior discipline in Wisconsin.
Reinstatement of P. Nicholas Hurtgen
On Sept. 18, 2015, the supreme court reinstated the law license of P. Nicholas Hurtgen and ordered him to pay the cost of the reinstatement proceeding. Disciplinary Proceedings Against Hurtgen, 2015 WI 92.
On Sept. 9, 2009, the supreme court granted an SCR 22.19 petition for consensual license revocation filed by Hurtgen. Hurtgen’s petition acknowledged he could not successfully defend against allegations of misconduct under investigation by the OLR stemming from his federal conviction, following a guilty plea, to one count of aiding and abetting wire fraud, in connection with a long-running federal investigation of corruption in the administration of former Illinois governor Rod Blagojevich.
The U.S. Supreme Court subsequently issued an opinion in an unrelated case holding that the legal theory under which Hurtgen had been charged was flawed. As a result, Hurtgen was allowed to withdraw his guilty plea. Five months later, all charges against him were dismissed with prejudice.
The OLR did not oppose the reinstatement petition. Following a hearing, a referee concluded that Hurtgen had met the standards for reinstatement. The supreme court agreed and granted Hurtgen’s petition.
Reinstatement of Kristy Joi Downing
On Sept. 30, 2015, the supreme court reinstated the law license of Kristy Joi Downing and ordered her to pay the cost of the reinstatement proceeding. Disciplinary Proceedings Against Downing, 2015 WI 93.
Following a finding in an unrelated matter that Downing was incompetent to stand trial in Michigan, on May 16, 2013, the Michigan Attorney Discipline Board ordered that Downing’s license be transferred to inactive status indefinitely. On Oct. 8, 2013, the OLR filed a complaint and motion seeking reciprocal discipline identical to that imposed by Michigan. On Jan. 13, 2014, Downing’s Wisconsin law license was indefinitely suspended because of Downing’s medical incapacity.
In January 2014, Michigan returned Downing’s license status to active. In June 2014, Downing filed a petition seeking reinstatement of her Wisconsin law license. The OLR then sought to have Downing’s medical condition independently evaluated. It was the opinion of the clinician conducting the evaluation that Downing had full capacity to practice law. The OLR did not oppose the reinstatement petition. After a hearing, a referee concluded that Downing had met the standards for reinstatement. The supreme court agreed and granted Downing’s petition.
Private Discipline
The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, 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 summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems.
Lack of Diligence; Failure to Communicate; Misrepresentation in a Disclosure to the OLR
Violations of SCR 20:5.3(b), 20:1.3, 20:1.4(a)(3) and (4), and 22.03(6)
A lawyer was privately reprimanded for her misconduct in two client matters.
In the first matter, in violation of SCR 20:5.3(b), the lawyer failed to take steps to ensure that her assistant followed office procedures such that the lawyer would be aware of a new SPD appointment; communications received from her client and communications transmitted by her office relating to the client’s matter; and scheduled and rescheduled proceedings in the client’s matter. The lawyer failed to appear for a revocation hearing and failed to take steps to ensure that the client and the court knew she would not be appearing, in violation of SCR 20:1.3. She also failed to inform the client that she would not be attending the hearing and failed to inform him that the hearing had been rescheduled, in violation of SCR 20:1.4(a)(3). Finally, the lawyer failed to respond to correspondence from the client, in violation of SCR 20:1.4(a)(4).
In the second matter, the lawyer violated SCR 22.03(6) when she asserted to the OLR that she had visited a client in jail on several occasions and manufactured documents purporting to memorialize those meetings; jail records do not reflect the visits and the client maintains the visits never occurred. SCR 22.03(6) is enforced under the Rules of Professional Conduct via SCR 20:8.4(h).
The lawyer had no prior discipline.
Criminal Act (OWI-Second) Reflecting Adversely on Fitness to Practice
Violation of SCR 20:8.4(b)
A lawyer was convicted in July 2014 of misdemeanor second-offense operating while intoxicated (OWI), following a December 2013 traffic stop precipitated by the lawyer’s improper driving. The lawyer smelled of alcohol, had glassy eyes, failed field sobriety tests, and had a blood-alcohol content above the legal level. The lawyer was sentenced to 14 days in jail with Huber privileges, driver’s license revocation for 12 months (with credit), and interlock ignition device (IID) installation for 12 months. The lawyer also was ordered to undergo an alcohol assessment and pay a fine and costs.
By engaging in conduct leading to a conviction of second-offense OWI, the lawyer violated SCR 20:8.4(b).
The lawyer had no prior discipline.
Competence; Diligence; Communication
Violations of SCR 20:1.1, 20:1.3, and 20:1.4(a)(3) and (4)
A lawyer represented a client who had been injured in a car accident. After being hired, the lawyer contacted a representative of the company handling claims for the car rental agency that rented the car to the other driver involved in the accident. The lawyer relayed the company’s requests for additional information to the client.
After providing case-related information to the lawyer, the client did not hear from the lawyer and became concerned about the applicable three-year statute of limitation. The client called the lawyer’s office several times during a five-month period, typically speaking with the lawyer’s receptionist without receiving any meaningful case updates.
Approximately three years after the client and the lawyer first met, the client scheduled a meeting with the lawyer. The lawyer instead telephoned the client, apologized, and informed the client that no lawsuit had been filed, the case had been rendered time barred by the applicable statute of limitation, and the adverse insurer would therefore be paying nothing on the client’s claims.
In resolution of the client’s malpractice claim against him, the lawyer paid the client the amount he estimated the client would have netted had the tort claim been preserved.
By failing to properly account for the application of the statute of limitation in the client’s case, and by failing to either resolve the matter or file a civil action on behalf of the client before the client’s claims were rendered time barred, the lawyer violated SCR 20:1.1 and SCR 20:1.3. By failing to respond to the client’s inquiries or otherwise keep the client informed as to case status, the lawyer violated SCR 20:1.4(a)(3) and (4).
The lawyer had no prior discipline.
Holding Earned Fees in a Trust Account; Failure to Maintain Required Trust Account Records; Filing False Trust Account Certification
Violations of SCR 20:1.15(b)(3), (f)(1), and (i)(4)
A lawyer overdrew the law office client trust account with a $2,000 check that was payable to the lawyer. At the time of the overdraft, the lawyer was not holding client or third-party funds in the trust account but held $1,309.83 in personal or law office funds. That amount was well in excess of what was reasonably necessary to cover monthly service fees on the account. By holding funds in the trust account belonging to the lawyer or the lawyer’s firm, the lawyer violated SCR 20:1.15(b)(3).
The lawyer had at times used the trust account to hold client funds but was not keeping a trust account transaction register, individual client ledgers, or images of the checks disbursed from the account, as required by SCR 20:1.15(f)(l)a., b. and e.2., respectively. The lawyer also failed to keep a maintenance account ledger for lawyer funds held in the account to accommodate monthly service charges, as required by SCR 20:1.15(f)(l)g.
In 2014, the lawyer signed and submitted a trust account certificate to the State Bar falsely attesting to compliance with trust account record-keeping requirements and by doing so engaged in misconduct under SCR 20:1.15(i)(4).
The lawyer had a prior 90-day suspension.
Trust Account Violation; Failure to Account for Fees; Incompetence; Failure to Communicate in Civil Matters
Violations of SCR 20:1.15(b)(4), 20:1.5(b)(3), 20:1.16(d), 20:1.1, and 20:1.4(a)(3) and (b)
A lawyer was privately reprimanded for his misconduct in two matters.
In the first matter, a man hired the lawyer to represent him in attempting to collect money owed to him. The lawyer placed an advanced fee into his business account, without attempting to use the alternative offered by SCR 20:1.15(b)(4m), in violation of SCR 20:1.15(b)(4). The lawyer failed to respond to the client’s requests for an accounting of the work performed on the client’s behalf and a return of any unearned fees, in violation of SCR 20:1.5(b)(3) and SCR 20:1.16(d).
In the second matter, the lawyer represented a man in a lawsuit regarding injuries received while incarcerated. The lawyer failed to object to the defendants’ proposed findings of fact or to submit findings of fact of his own and failed to recognize that doing so was necessary; filed a response to summary judgment motions that contained no citations to law or fact, assuming them unnecessary; and failed to file for default against two defendants who had failed to file an answer, and advised the client that it was inappropriate to take action with regard to those defendants until the court acted against the other defendants, all in violation of SCR 20:1.1.
The lawyer failed to inform the client that his lawsuit had been dismissed, in violation of SCR 20:1.4(a)(3). The lawyer failed to explain to the client the timeline for reinstating claims against two defendants, in violation of SCR 20:1.4(b). Finally, the lawyer failed to inform the client that he believed his representation had ended, in violation of SCR 20:1.16(d).
The lawyer had no prior discipline.
Lack of Competence
Violation of SCR 1.1
A lawyer, who had represented to the public that he provided tax services, prepared and filed annual tax returns on behalf of a client for each year from 2003 to 2013. Although the client was a tenant who paid rent for her residences beginning in 2002 and continued to do so for most years through 2013, the lawyer did not apply for the Wisconsin Homestead Credit on the client’s tax returns.
In 2014, the client took her tax information to another tax preparation service that was able to file amended returns for the years 2009-2012 and obtain total refunds of $3,620. The deadline had passed to file amended returns for the years 2002-2008, resulting in the loss of thousands of dollars to the client.
By failing to apply for the Wisconsin Homestead Tax Credit when preparing the annual tax returns on behalf of a client for 2003, 2005, 2006, and 2008-2013, although he was aware that the client paid rent and should have known that she was eligible for the tax credit during those years, the lawyer violated SCR 20:1.1.
The lawyer had no prior discipline.
Practicing Law While Suspended
Violations of SCR 10.03(6), 20:5.5(a)(1), and 31.10(1)
A lawyer’s law license was suspended for noncompliance with the Wisconsin mandatory continuing legal education requirements and for nonpayment of State Bar annual dues. The lawyer was registered as a patent attorney with the U.S. Patent and Trademark Office (USPTO). When the lawyer’s law license was suspended in Wisconsin, the lawyer’s status with the USPTO changed from a patent attorney to a patent agent. Therefore, the lawyer was not licensed to practice law in Wisconsin, not a patent attorney, and not licensed as a lawyer in any jurisdiction.
During the suspension, the lawyer signed and entered into a joint representation and common interest agreement with a law firm to represent a client. The agreement stated that the lawyer had “previously represented and continues to represent” the client.
While the lawyer’s Wisconsin law license was suspended and the lawyer’s USPTO registration status was as a patent agent and not a patent attorney due to the suspension, by representing the client in a trademark matter, and thereafter by entering into an agreement to provide joint representation for the client in the trademark matter, and by otherwise engaging in the practice of law in representing the client in the trademark and other business matters before and after entering into the agreement, the lawyer violated SCR 10.03(6), SCR 20:5.5(a)(1), and SCR 31.10(1), which are enforced under the Rules of Professional Conduct for Attorneys via SCR 20:8.4(f).
Lack of Competence; Failure to Communicate; Failure to Place Advanced Fee into Trust Account
Violations of SCR 20:1.1, 20:1.4(b), and 20:1.15(b)(4)
An individual hired a lawyer for criminal defense representation. The fee agreement called for a flat fee, which is one type of advanced fee as defined under SCR 20:1.0(ag), and provided for placement of the advance in the lawyer’s business account. The fee agreement contained the incorrect claim that the lawyer was not obligated to return any unearned fees on conclusion of the representation. By accepting an advance in anticipation of providing legal services, and by failing to place the advance in his trust account, with no evidence of an intention to use the alternative protections stated in SCR 20:1.15(b)(4m), the lawyer violated SCR 20:1.15(b)(4).
The lawyer provided the client with a written and oral summary of a proposed plea agreement. Based on the lawyer’s explanation, the client pleaded guilty pursuant to the agreement. At sentencing, the client received a driver’s license suspension not previously explained by the lawyer. The lawyer later advised the client that a withdrawal of the guilty plea would likely be unsuccessful. In a subsequent letter to the client, the lawyer acknowledged that he misstated the penalty for one charge in his prior summarization, and in so doing, did not address a statutorily mandated driver’s license revocation to be imposed regardless of the terms of the negotiated plea agreement.
By incorrectly advising the client as to the terms of the plea agreement negotiated on the client’s behalf, upon which incorrect advice the client relied in making the decision to accept the agreement, the lawyer violated SCR 20:1.1. By failing to explain the statutorily mandated driver’s license revocation to the client, the lawyer violated SCR 20:1.4(b).
The lawyer had no prior discipline.
Failure to Communicate Basis or Rate of Fee; Failure to Deposit Advanced Fees in Trust; Failure to Respond to Inquiries Concerning Advanced Fees; Failure to Refund Unearned Advanced Fee
Violations of SCR 20:1.5(b)(1) and (3), 20:1.16(d), and 20:1.15(b)(4)
A lawyer collected a $750 advanced flat fee from a client for representation in a traffic matter. There was no written fee agreement. After the final hearing, the lawyer collected another $500 from the client for future, but not specifically defined, legal services. The lawyer failed to deposit either advance into a trust account, in violation of SCR 20:1.15(b)(4).
The lawyer then provided an itemization that was calculated on an hourly basis and showed a balance due. The itemization did not reference the $500 payment. The lawyer thereafter failed to respond to inquiries regarding the $500 payment, in violation of SCR 20:1.5(b)(3).
The lawyer eventually provided a revised itemization that showed a reduced balance due but no additional work completed by the lawyer after the final hearing.
Having agreed to represent the client on a flat-fee basis, by thereafter accepting another $500 for reasons not clearly stated and providing the client with itemizations showing a fee calculated on an hourly basis (without benefit of any written notice of a change in the manner in which the fee would be calculated) and thus failing to clearly state the basis or rate of the fee, the lawyer violated SCR 20:1.5(b)(1).
By failing to refund the $500 payment, the lawyer violated SCR 20:1.16(d). As a condition of the imposition of this private reprimand, the lawyer refunded $500 to the client.
The lawyer had two prior private reprimands and one prior public reprimand.
Lack of Diligence; Failure to Communicate; Unreasonable Fees; Failure to Refund Unearned Fee
Violations of SCR 20:1.3, 20:1.4(a)(3) and (4), 20:1.5(a), and 20:1.16(d)
A lawyer engaged in misconduct in two client matters.
In the first matter, the lawyer failed to file a petition for writ of certiorari with the circuit court by the statutory deadline, in violation of SCR 20:1.3. The lawyer also failed to respond to several letters from the client inquiring as to the status of the writ and failed over a five-month period to inform the client that the writ had not been filed by the statutory deadline, in violation of SCR 20:1.4(a)(3) and (a)(4).
In charging the client $700 for the preparation and filing of the petition for writ of certiorari and then through the lawyer’s own conduct by failing to see to the filing of the petition within the statutory deadline, thus causing the lawyer’s efforts to have no value, the lawyer charged an unreasonable fee, in violation of SCR 20:1.5(a). Finally, in failing to refund any portion of the $700 advanced fee or expense that had not been earned or incurred, the lawyer violated SCR 20:1.16(d).
In the second matter, by failing over approximately 14 months to inform another client of the status of the client’s legal matter and during that time by also failing to respond to the client’s letter that specifically requested a status update, the lawyer violated
SCR 20:1.4(a)(3) and (a)(4).
The lawyer had no prior discipline.
Trust Accounts and Fees
Violations of SCR 20:1.15(b)(4), (e)(1), and (e)(4)(h), and 20:1.5(b)(1) and (2)
A Wisconsin-licensed lawyer practicing immigration law in another state represented a client in an immigration matter. The client’s girlfriend hired the lawyer and paid him fees totaling $2,275, a portion of which were advanced fees. The lawyer did not place the advanced funds into a client trust account. By failing to deposit those funds into a client trust account, instead depositing the money into his law firm general operating account (with no evidence he intended to use the alternative fee placement permitted by SCR 20:1.15(b)(4m)), the lawyer violated SCR 20:1.15(b)(4).
In a second immigration matter, the client’s fiancé hired the lawyer and paid him advanced fees and costs totaling $2,850, of which $2,700 was paid via credit card. The lawyer had no Wisconsin trust account, and thus he did not deposit the advanced fees or costs into an authorized IOLTA trust account or a credit card trust account. By failing to deposit those advanced funds into an authorized IOLTA client trust account, to maintain a trust account in Wisconsin, and to deposit the advanced fees received by credit card into a credit card trust account, or otherwise comply with trust account rules pertaining to the transfer of advanced fees, the lawyer violated SCR 20:1.15(b)(4), (e)(1), and (e)(4)(h).
Moreover, by failing to provide the client (or the client’s fiancé) with a written fee agreement identifying the scope of the representation, the basis or rate of the fee, or the purpose and effect of the $2,850 advanced fee received, the lawyer violated SCR 20:1.5(b)(1) and (2).
The lawyer had no prior discipline.
Criminal Act Reflecting Adversely on Fitness to Practice
Violation of SCR 20:8.4(b)
A lawyer was convicted in March 2015 of misdemeanor second-offense OWI. The lawyer was the subject of a traffic stop after law enforcement officers observed the lawyer’s vehicle deviating from its lane of travel so much that it nearly struck a median wall. The lawyer exhibited signs of intoxication, had poor balance while participating in field-sobriety tests, and had a blood-alcohol content above the legal limit.
The lawyer was sentenced to 45 days in the Milwaukee County House of Correction with Huber privileges, driver’s license revocation for 12 months, and IID installation for 12 months. The lawyer also was ordered to undergo an alcohol assessment and pay a fine and all costs, penalties, and surcharges.
By engaging in conduct leading to a conviction of misdemeanor second-offense OWI, the attorney violated SCR 20:8.4(b).
The attorney had one prior private reprimand.
Failing to Hold Funds in Trust; Failing to Maintain Trust Account Records; Failing to Identify Trust Account; and Failing to Certify Compliance with Trust Account Rule
Violations of SCR 20:1.15(b)(1), (f)(1), and (i)(1) and (2)
On Sept. 19, 2013, there was an overdraft in the amount of $2,525.01 on a lawyer’s trust account when a trust account check was presented and paid. Investigation of this overdraft revealed problems with the lawyer’s trust account management.
By failing to hold in trust at least $10,883.09 in client and third-party funds, which was not discovered until the trust account became overdrawn, the lawyer violated SCR 20:1.15(b)(1). There was no dishonesty or other ill motive connected to the failure to hold funds in trust.
By failing to maintain complete transaction registers, subsidiary client ledgers, and monthly trust account reconciliations, the lawyer violated the record-keeping requirements of SCR 20:1.15(f)(1).
In his 2013 and 2014 State Bar of Wisconsin annual dues statements, by failing to identify his trust account by bank account number and by failing to certify that he was in compliance with each of the record-keeping requirements set forth in SCR 20:1.15(f) and (j)(5), the lawyer failed to comply with the requirement that lawyers identify their trust accounts and certify compliance with trust account record-keeping rules, in violation of SCR 20:1.15(i)(1) and (i)(2).
The lawyer had no prior discipline.
Diligence and Communication
Violations of SCR 20:1.3 and 20:1.4(a)(3) and (4)
In January 2013, the State Public Defender’s Office appointed a lawyer to represent a man in the appeal of his criminal convictions. In August 2013, the lawyer filed a motion to extend time to file postconviction motions, notice of appeal or no-merit report. The court of appeals granted the motion and extended the deadline for filing the client’s notice of appeal or postconviction motions, but the lawyer did not file the client’s notice of appeal, a postconviction motion, a no-merit report, or a motion for additional time to file the same.
The lawyer spoke with the client by telephone in August and October 2013. The lawyer failed to provide the client with a copy of certain transcripts and failed to meet with the client in person to discuss the client’s case, despite promises to do so. The lawyer also failed to respond to four letters the client sent between April 2013 and January 2014 requesting information regarding his appeal.
In August 2014, after the OLR commenced an investigation of the client’s grievance, the lawyer consulted with a supervising attorney at the State Public Defender’s Office, who appointed successor counsel.
By failing to timely pursue the client’s postconviction or appellate interests, or to timely file a motion for additional time, file a no-merit report, or withdraw from the representation so that successor counsel could be appointed, the lawyer violated SCR 20:1.3.
By failing to communicate with the client after their phone call in October 2013, the lawyer violated SCR 20:1.4(a)(3).
By failing to provide the client with copies of requested transcripts and by failing to respond to any of the client’s letters, the lawyer violated
SCR 20:1.4(a)(4).
The lawyer had no prior discipline.
