Wisconsin Lawyer
Vol. 79, No. 5, May
2006
Private Reprimand Summaries
The Wisconsin Supreme Court permits the Office of Lawyer Regulation
(OLR) to publish, for educational purposes, in an official State Bar
publication 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 following summaries of selected private reprimands, imposed by
the OLR, are printed to help attorneys avoid similar misconduct
problems. Some of the summaries may indicate violations of the rules
that were in effect prior to Jan. 1, 1988. The current rules proscribe
the same types of misconduct.
Under the new rules of lawyer regulation, a court-appointed referee
will impose private reprimands with consent of the attorney. See SCR
22.09 (2000).
Failure to Respond to Client's Requests for
Information, Failure to Explain Matter to Allow Client's Informed
Decision
Violations of SCR 20:1.4(a) and 20:1.4(b)
A woman hired an attorney to handle a speeding ticket matter. The
client sent the lawyer a check for the fee enclosed in a letter in which
the client requested from the attorney clarification of the point system
for driver's license suspensions in Wisconsin. The client asked whether
the conviction date or the violation date was the relevant date for
computing points and possible driver's license suspensions. Although the
attorney received and cashed the check, the attorney did not reply to
the client's request for information regarding the point system. By
failing to respond to the client's letter requesting that the attorney
confirm the client's understanding of Wisconsin's demerit suspension
system, the attorney violated SCR 20:1.4(a).
The attorney entered a guilty plea on behalf of the client to the
four-point violation. The attorney then sent the client a letter
explaining the results of the hearing, but the attorney did not inform
the client that her license would be suspended automatically as a result
of her conviction. The client, therefore, continued to drive until she
received notification of the suspension from the Wisconsin Department of
Transportation three days after the effective date of the
suspension.
By not fully explaining to the client the consequences (including
license suspension) of entering a guilty plea to a four-point traffic
violation, and by not advising the client to take steps to prepare for
such suspension, the attorney violated SCR 20:1.4(b).
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Lack of Diligence and Failure to Communicate
with Client
Violations of SCR 20:1.3, 20:1.4(a), and
20:1.4(b)
During the summer of 2003, an attorney was appointed by the Office of
the State Public Defender (SPD) to represent a man in postconviction
proceedings. The client asserted that after the initial appointment, he
contacted the attorney by letter and inquired about possible ineffective
assistance of counsel issues and particular constitutional issues he
wanted the attorney to address. The client asserted he waited 11 months
to hear from the attorney and after he heard nothing further, he
contacted the SPD's office, complaining he had not heard from his
attorney.
The SPD attorney manager notified the attorney that he had received a
complaint from the client concerning the attorney's representation of
the client. The SPD attorney manager requested that the attorney respond
to the client within 10 days and provide a copy of his response to the
SPD's office. The attorney did not contact the client to discuss
postconviction proceedings concerning his case, nor did he respond to
the SPD attorney manager.
Sometime during the summer of 2004, the client again notified the
SPD's office that he had not heard further from the attorney. The SPD
attorney manager notified the attorney that he had received a second
complaint from the client alleging that the attorney still had not
contacted the client, and had failed to keep the client informed as to
the status of his case. The SPD attorney manager also indicated that the
attorney had failed to respond to the attorney manager's own earlier
letter requesting that the attorney provide the client with a status
report. The SPD attorney manager again requested that the attorney
respond to the client's concerns. The attorney again failed to reply to
the SPD manager's letter or to contact the client.
After the client filed a grievance with the Office of Lawyer
Regulation (OLR), the attorney acknowledged to the SPD attorney manager
that when the attorney initially reviewed the file and transcripts from
the client's case, he determined there were no significant meritorious
issues that could be argued for relief but that this information was not
communicated to his client. The attorney also asserted there had been a
brief discussion with the client about filing a no-merit report, but the
attorney was reluctant to file such a report because the client was now
intent on removing him as counsel.
By failing to advance postconviction motions or an appeal on the
client's behalf, or in the alternative, to formally close out the file
with a no-merit report or any other proper notice to the client, courts,
and the SPD, the attorney violated SCR 20:1.3, which states, "A lawyer
shall act with reasonable diligence and promptness in representing a
client."
By failing to inform the client of the case status and by failing to
respond to the client's letters asking about the status of his appeal,
the attorney violated SCR 20:1.4(a), which states, "A lawyer shall keep
a client reasonably informed about the status of a matter and promptly
comply with reasonable requests for information."
By failing to communicate with the client between July 2003 (the time
of his initial appointment) and August 2004 to inform the client that he
thought a no-merit report should be filed in the case, the attorney
failed to allow his client to make any informed decisions regarding
appellate efforts and thereby the attorney violated SCR 20:1.4(b), which
states, "A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the
representations." The attorney had no prior discipline.
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Incompetent Representation; Conflict of
Interest
Violations of SCR 20:1.1 and 20:1.7(b)
The adult son of an elderly woman diagnosed with Alzheimer's disease
contacted an attorney to come to the home shared by the man and his
mother to prepare a new will and power of attorney for the woman. During
the attorney's home visit, the woman told the attorney that she wanted
to make a new will and leave her estate to the son with whom she lived
because her other children did not need the money. The attorney did not
rigorously challenge the woman's memory or properly consider any
potential undue influence by the son. The mother, the son, and the
attorney agreed that the attorney would return on a later date with the
prepared documents.
On the same day as the lawyer's initial meeting with the mother and
son, an investigator from the county department of aging attempted a
home visit based on an anonymous report that the son was not properly
caring for the mother. The son barred the investigator from entering the
residence. The son then called the attorney and asserted that his mother
did not want to be bothered by the county. The attorney, not knowing
that the son was the suspected perpetrator of the alleged elder abuse,
called the county and asserted that he represented both the mother and
the son, and he questioned the basis for the investigator's attempted
home visit. County staff referred the attorney to the applicable
statute.
The day after the attorney's home visit, the woman was hospitalized
with various ailments, and she remained hospitalized for several days.
Shortly after the woman's admission, the son called the attorney to
request a time for the attorney to come and have the mother sign her new
will and power of attorney. The attorney met alone with the woman on the
fifth day of her hospitalization, after instructing the son to leave the
room. The attorney asked the woman some questions and decided that the
woman was competent to sign the documents, which she did. The will
nominated the son to serve as personal representative and left all of
the woman's estate assets to the son. The next day a psychiatrist
determined that the woman was incompetent and was an appropriate
candidate for guardianship. The woman's assets were subsequently
expended for nursing home care, leaving the validity of the new will a
moot point.
The attorney told the OLR that he considered both the woman and her
son to be his clients. The attorney later stated that he considered the
son to be an extension of his client, the mother, and that the son was
looking out for the mother's interests.
By failing to perform an adequate investigation of issues concerning
the woman's competence and potential undue influence by the son, the
lawyer failed to provide competent representation as required under SCR
20:1.1. The misconduct was mitigated because the attorney's actions did
not lead to financial harm for the woman or her estate.
Having already undertaken to represent the woman in preparing a will
and power of attorney, by failing to consult with the woman and obtain
her written consent before the attorney's representation of both the
woman and her son in the matter of the department of aging
investigation, the attorney violated SCR 20:1.7(b).
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Failure to Provide Diligent Representation;
Failure to Keep Clients Reasonably Informed
Violations of SCR 20:1.3 and 20:1.4(a)
A Wisconsin attorney agreed to assist a husband and wife (the couple)
in connection with allegations that the couple's adult son had defrauded
two people in another state. The lawyer entered into negotiations with
the alleged fraud victims, with the couple offering to pay a certain sum
to each of the victims. A signed settlement was never achieved.
One of the alleged fraud victims filed suit in his state of residence
against the couple, claiming the couple had failed to abide by
settlement terms reached through negotiations with the Wisconsin
attorney. The plaintiff subsequently filed a motion for default
judgment, asserting that the defendants had failed to answer the civil
complaint following proper service. The plaintiff's counsel provided a
copy of the default motion to the Wisconsin attorney. The attorney
contacted the couple, who denied that they had been served in the
suit.
The Wisconsin attorney then retained an attorney to defend the suit
in the state in which it was filed. That attorney's only communications
were with the Wisconsin attorney, not the defendant couple. The attorney
defending the suit mishandled the case, leading to the entry of a
default judgment against the couple.
The Wisconsin attorney failed to monitor the civil case and failed to
regularly contact the attorney defending the suit, and therefore
violated SCR 20:1.3, which requires a lawyer to act with reasonable
diligence and promptness in representing a client. The Wisconsin
lawyer's failure to provide updates to his clients regarding the status
of the civil case violated SCR 20:1.4(a), which requires a lawyer to
keep a client reasonably informed about the status of a matter and
promptly comply with reasonable requests for information.
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Failure to Properly Supervise Nonattorney Employee;
Failure to Return Unearned Portion of Fee
Violations of SCR 20:5.3(b) and 20:1.16(d)
A woman hired an attorney for representation in a divorce and
advanced $1,500 to the attorney for the representation. Shortly after he
was hired, the attorney delegated to his secretary the task of arranging
for and providing notice of a hearing for a particular Monday. On the
Friday afternoon before the anticipated 11:30 a.m. Monday hearing, the
secretary telephoned the client and informed her of the hearing.
Over the intervening weekend, the client left several messages for
the attorney, seeking information about the hearing, asking whether any
preparation was necessary for the hearing, and informing the attorney
that she would have to leave work to appear. Proper notice to the
adverse party was not accomplished, and the hearing was not on the
court's calendar. The client, however, appeared at the time and place
indicated by her attorney's office, only to learn at the courthouse that
no hearing was to take place in her divorce at that time.
The client then fired the attorney and requested the return of the
full $1,500 advance, given the brevity of the representation and the
absence of tangible progress in the matter. The attorney refused,
claiming that the funds constituted a "nonrefundable" minimum fee. The
woman sued the attorney. Shortly before trial a settlement was reached
under which the attorney paid $1,250 to the woman.
By failing to properly supervise his secretary's actions regarding
scheduling and notice of the hearing, and its cancellation, the attorney
violated SCR 20:5.3(b), which states, "A lawyer having direct
supervisory authority over the non-lawyer shall make reasonable efforts
to ensure that the person's conduct is compatible with the professional
obligations of the lawyer." In failing to timely refund a portion of the
fee paid by the client, the attorney violated SCR 20:1.16(d), which
requires an attorney, on termination of representation, to take steps
reasonably practicable to protect the client's interests, including
refunding any advance payment of a fee that has not been earned.
The attorney was previously privately reprimanded for misconduct.
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Lack of Diligence
Violation of SCR 20:1.3
A man was terminated from his employment. After the Equal Employment
Opportunity Commission (EEOC) gave the man notice of his right to file
suit in federal court, the man filed a pro se lawsuit alleging a
violation of Title VII of the Civil Rights Act and a claim under 42
U.S.C. § 1983 for alleged Fourteenth Amendment violations. The
client subsequently retained an attorney. This attorney handled several
preliminary motions and sent the client a letter informing him that she
believed discovery was "crucial" to his case, and that he should contact
her to discuss how such discovery would be conducted and financed.
Around this time the client decided to replace the first attorney and
hire successor counsel.
After reviewing the client's file, successor counsel indicated in a
letter to the client that he anticipated receiving a summary judgment
motion from the defense and all they could do was respond to that motion
"as best we can." Successor counsel also informed the client that if
they could obtain evidence that nonminority coworkers had the same or
similar incidents of absenteeism as the client, but were not terminated,
there would be a "possibility of prevailing."
Defense counsel filed a motion in limine seeking to limit
the client's claims to a violation of Title VII, and to preclude any
claims that may have been pleaded under 42 U.S.C. § 1983, on the
ground that the client had failed to sue the personnel review board, the
proper party under § 1983. Successor counsel filed a response to
the defendants' motion in limine but failed to address the
issue of proper party defendants and failed to make a motion to amend
the pleading to add the personnel review board as an additional party
defendant in the lawsuit.
The attorney and the client met three or four times before the trial.
The client said he gave the attorney the names of five nonminority
employees he thought had the same or worse attendance records than he
did, but who were not terminated. The attorney denied the client gave
him any such names.
The attorney conducted no discovery before trial. At trial the
attorney's only witness was the client. The only evidence the attorney
presented of more favorable treatment of nonminority employees who were
similarly situated was the client's testimony that he did not know of
any nonminority employees who had been fired for excessive
absenteeism.
The client was not prepared to testify about his damages and the
attorney did not have the client come prepared with employment records
and wage statements from posttermination employment. Although the client
claimed he did not violate work rules relating to absenteeism, he
testified that he did not know what the rules were with regard to
absenteeism.
The attorney attempted to place into evidence a copy of an
interoffice communication pertaining to a prior internal discrimination
complaint made by the client. The court refused to allow the report into
evidence because the attorney failed to lay the proper foundation for
it. At the conclusion of the client's case, the court granted a defense
motion to dismiss, stating that the plaintiff had "proven nothing."
An appellate court affirmed the dismissal, stating that the client's
testimony to the effect that he did not know of any nonminority
employees who were ever fired for absenteeism fell "woefully short" of
what is required to establish a prima facie case under Title VII.
By failing to conduct discovery and engage in adequate trial
preparation, including preparation of his client to testify, by failing
to make a motion to amend the pleadings to add the personnel review
board as an additional party defendant in the lawsuit, and by being
unprepared to lay an adequate foundation for the admission of an
interoffice communication, the attorney violated SCR 20:1.3, which
requires a lawyer to act with reasonable diligence and promptness in
representing a client.
The attorney had no prior discipline. 110 E. Main St., Suite 315,
Madison, WI 53703, (877) 315-6941, or from OLR retained counsel Richard
P. Mozinski, Radosevich, Mozinski, Cashman & Olson, 903 Washington
St., Manitowoc, WI 54221, (920) 684-1234.
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