Wisconsin Lawyer
Vol. 82, No. 10, October 2009
Disciplinary proceedings against Willie J. Nunnery
On July 21, 2009, the Wisconsin Supreme Court suspended the law license of Willie J. Nunnery, Madison, for three years, effective Aug. 24, 2009. In addition, the court ordered Nunnery to pay restitution and the full cost of the disciplinary proceedings. Disciplinary Proceedings Against Nunnery, 2009 WI 89.
Nunnery’s suspension was based on 36 counts of misconduct committed in connection with seven client matters and was the result of two separate disciplinary proceedings initiated by the Office of Lawyer Regulation (OLR). Both disciplinary proceedings were argued before the supreme court on May 22, 2009, and addressed collectively in the court’s July 21, 2009 opinion.
In an estate matter, Nunnery made false statements to the probate court regarding his handling of the estate and the estate’s assets, in violation of former SCR 20:3.3(a)(1) (effective before July 1, 2007), and exceeded the limited authority he was granted as special administrator of the estate, in violation of former SCR 20:3.4(c) (effective before July 1, 2007). Nunnery also converted to his own use at least $30,450.48 of estate funds and certain personal property from the estate, in violation of SCR 20:8.4(c).
Nunnery repeatedly violated former SCR 20:1.4(a) (effective before July 1, 2007) by failing to respond to several of his clients’ reasonable requests for information and to keep them reasonably informed about the status of their cases. He also repeatedly violated former SCR 20:1.4(b) (effective before July 1, 2007) by failing to explain matters to several clients to the extent reasonably necessary to permit them to make informed decisions regarding the representation. Nunnery also failed to consult several clients on the means by which the objectives of the representation should be pursued and failed to abide by their decisions, in violation of former SCR 20:1.2(a) (effective before July 1, 2007); failed to explain the rate and basis of his fee, in violation of former SCR 20:1.5(b) (effective before July 1, 2007); failed to safeguard two clients’ interests on termination of his representation, in violation of former SCR 20:1.16(d) (effective before July 1, 2007); advanced funds to two clients during the pendency of litigation, in violation of former SCR 20:1.8(e) (effective before July 1, 2007); and acted under a conflict of interest without obtaining the clients’ written consent, in violation of former SCR 20:1.7(b) (effective before July 1, 2007).
In one client matter Nunnery failed to provide competent representation, in violation of SCR 20:1.1, and in three client matters, Nunnery failed to act with reasonable diligence and promptness in representing his clients, in violation of SCR 20:1.3.
Nunnery also made misrepresentations to one client, in violation of SCR 20:8.4(c); made misrepresentations to a federal court regarding his communications with a client, in violation of former SCR 20:3.3(a)(1) (effective before July 1, 2007); and made misrepresentations to the OLR, in violation of SCR 22.03(6) via SCR 20:8.4(f).
Nunnery also failed to maintain adequate trust account records, in violation of former SCR 20:1.15(e) (effective before July 1, 2004) and former SCR 20:1.15(f)(1)a. and former SCR 20:1.15(f)(1)b. (both effective between July 1, 2004 and June 30, 2007).
In one matter, Nunnery failed to comply with the OLR’s reasonable requests for information, in violation of SCR 22.03(2) and (6) via SCR 20:8.4(f).
In 2007 Nunnery’s law license was suspended for two months for misconduct stemming from his handling of six client matters between 1997 and 2003. His misconduct included failing to provide competent representation, knowingly advancing a claim that was unwarranted under existing law, failing to provide diligent representation, failing to adequately communicate with his clients and to explain matters to the extent necessary for them to make informed decisions, failing to reduce a contingent fee agreement to writing, and failing to hold client funds in trust. Disciplinary Proceedings Against Nunnery, 2007 WI 1.
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Disciplinary proceedings against James T. Winch
On July 3, 2009, the supreme court suspended the law license of James T. Winch, who last practiced in Mazomanie, for three years. In addition, the court ordered Winch to pay restitution to an estate he was hired to probate. Disciplinary Proceedings Against Winch, 2009 WI 64.
Winch’s suspension was based on 11 counts of professional misconduct committed in connection with two client matters and on a criminal conviction.
With regard to the criminal conviction, in March 2008, Winch pleaded guilty to 10 counts of possession of child pornography, a Class D felony. State v. Winch, Dane County Case No. 2007CV1485. The supreme court found that Winch committed a criminal act that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b).
In the first client matter, Winch represented L.D. concerning a civil suit filed against her in Dane County Circuit Court. Winch also agreed to draft a quitclaim deed to transfer L.D.’s interest in jointly held property to her husband, in an effort to protect the property from the plaintiff’s claims.
By failing to timely file L.D.’s answer in the suit, or to seek consent from the plaintiff or leave of the court to file a late answer, Winch failed to act with reasonable diligence and promptness, in violation of SCR 20:1.3.
By failing to advise L.D. that the plaintiff had filed motions to strike her late-filed answer and for default judgment and that Winch did not intend to take any action with regard to either motion, Winch failed to keep the client reasonably informed, in violation of former SCR 20:1.4(a) (effective before July 1, 2007), and failed to consult with the client regarding the motions, in violation of former SCR 20:1.2(a) (effective before July 1, 2007).
By failing to advise L.D. that she had no valid defense to the suit and that the plaintiff might be able to have the quit claim deed set aside as a fraudulent conveyance, Winch failed to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, in violation of former SCR 20:1.4(b) (effective before July 1, 2007).
By failing to timely advise L.D. that he needed to withdraw from representing her due to the suspension of his law license and by failing to timely return her documents, Winch violated former SCR 20:1.16(d) (effective before July 1, 2007) and current SCR 20:1.16(d).
By repeatedly advising L.D. that he intended to return her documents and by telling her he had the documents “right here,” when Winch was aware that he could not locate the documents, Winch engaged in conduct involving dishonesty, deceit, or misrepresentation, in violation of SCR 20:8.4(c).
In the second client matter, Winch was retained to handle the estates of A.M. and his adult son, T.M., who died less than two months after A.M. On Nov. 11, 2004, Winch deposited a $6,231.68 check representing T.M.’s share of A.M.’s estate in his client trust account. Winch never commenced any estate action in connection with T.M.’s estate, and no one was authorized to distribute any of the estate assets. Winch wrote four checks from his trust account with notations related to T.M.’s estate, including two checks totaling $875 to himself. By Aug. 19, 2005, Winch had used or disbursed the remainder of the estate’s assets for purposes unrelated to T.M.’s estate.
By failing to hold the entire $6,231.68 in trust until directed to disburse the funds by an authorized representative of T.M.’s estate, Winch failed to safeguard client funds, in violation of SCR 20:1.15(b)(1).
By converting at least $4,064.87 of funds belonging to T.M.’s estate for Winch’s own purposes or purposes unrelated to the estate, Winch engaged in conduct involving dishonesty, deceit, or misrepresentation, in violation of SCR 20:8.4(c).
By failing to provide T.M.’s siblings with his file for T.M.’s estate, Winch violated SCR 20:1.16(d).
Winch violated SCR 22.03(6), via SCR 20:8.4(h), by misrepresenting to the OLR that the assets remaining in T.M.’s estate after the payment of funeral expenses were exhausted by the payment of nominal administration expenses and reimbursement to the Medicaid Recovery Program for T.M.’s medical costs.
Winch violated SCR 22.03(2) and (6), via SCR 20:8.4(h), by failing to timely comply with the OLR’s requests for information and records during the investigation.
Winch had been disciplined on two prior occasions. In 1992 he was privately reprimanded for improperly threatening a criminal prosecution. In May 2007 Winch’s law license was suspended for one year for multiple trust account violations, conversion of client funds, and failing to cooperate in an OLR investigation. Disciplinary Proceedings Against Winch, 2007 WI 41.
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Public reprimand of Sallie Rubenzer
The OLR and Sallie Rubenzer, West Bend, 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 Aug. 28, 2009, in accordance with SCR 22.09(3).
A client hired Rubenzer to represent her in a divorce. Rubenzer performed various tasks, negotiated with adverse counsel, and negotiated a stipulated marital settlement agreement.
When Rubenzer arrived at the final divorce hearing, she appeared to be intoxicated. The judge stated his observations of Rubenzer’s condition.
The client terminated Rubenzer’s representation and chose to appear pro se rather than delay the hearing. The hearing proceeded and the divorce was granted based on the settlement agreement.
Rubenzer refunded some of the money the client had paid her. Rubenzer said she is a recovering alcoholic and that she takes her relapse very seriously. Aside from her conduct at the final hearing, Rubenzer’s representation was satisfactory and the client obtained a reasonable outcome.
By appearing in court to represent a client at a final divorce hearing while she was noticeably intoxicated, Rubenzer failed to provide competent representation, in violation of SCR 20:1.1.
As a condition of the reprimand, Rubenzer submitted evidence to the OLR director that she had begun treatment for alcohol dependence from a treatment provider approved by the director. Rubenzer must continue her treatment for one year and arrange for the treatment provider to give the OLR quarterly reports regarding her progress in treatment and her compliance with the treatment plan. Rubenzer certified to the director that she submitted copies of this reprimand and all prior reprimands, including private discipline, to her treatment provider.
In 2003, Rubenzer received a private reprimand for nonalcohol-related violations of SCR 20.1.1 and SCR 20:1.16(d). In 2004, Rubenzer received a private reprimand for violating SCR 20:8.4(b), following her convictions of operating while intoxicated (OWI) (third) and bail-jumping, due to her failure to maintain absolute sobriety while the OWI charge was pending. In 2007, after Rubenzer committed a fourth OWI offense, she was publicly reprimanded for violating SCR 20:8.4(b). Rubenzer also violated SCR 21.15(5) by failing to report her conviction to the supreme court clerk and to the OLR.
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Disciplinary proceedings against Jeffrey A. Reitz
The supreme court suspended the law license of Jeffrey Reitz, New Berlin, for a period of 90 days effective Sept. 14, 2009, and ordered Reitz to pay a client $2,199.66 in restitution and to pay the full $9,488.08 cost of the disciplinary proceeding. Disciplinary Proceedings Against Reitz, 2009 WI 90.
In 15 cases in which a member of Reitz’s law firm and clients had executed doctor’s liens agreeing to pay a chiropractor out of anticipated settlement proceeds, Reitz failed to give the chiropractor written notice when the clients’ settlement proceeds were received and failed to promptly deliver funds pursuant to the lien, in violation of former SCR 20:1.15(b) (effective before July 1, 2004). In one client matter, Reitz failed to confirm the correct amount of the chiropractic bill. He then sent to a collection agency, which allegedly was acting on behalf of the chiropractor, a trust account check that exceeded the actual amount owed by $2,199.96. The collection agency failed to pay the chiropractor, causing the chiropractor to also sue the client and obtain a default judgment against the client, although the client had already paid more than was owed.
In 2005, Reitz’s law license was suspended for five months.
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Public reprimand of Lori S. Eshleman
The OLR and Lori S. Eshleman, Milwaukee, 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. 5, 2009.
As of May 30, 2007, Eshleman’s law license was suspended because Eshleman failed to comply with mandatory continuing legal education requirements. Eshleman was aware of the suspension. She had taken the courses to satisfy the requirements but failed to report those courses or seek reinstatement of her license for seven months while she continued to routinely represent clients in Social Security cases. After Eshleman was confronted by her law partner, she reported her courses and filed a petition for reinstatement but continued to practice for an additional one-and-a-half months while her petition was under consideration.
By practicing law for eight and a half months while her license was administratively suspended, Eshleman violated SCR 31.10(1), which is enforceable as a disciplinary rule pursuant to SCR 20:8.4(f). By failing to notify clients, administrative courts, and opposing counsel of her suspension, Eshleman violated SCR 22.26(1). Eshleman had no prior discipline.
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Disciplinary proceedings against Neil R. McKloskey
On July 7, 2009, the supreme court suspended the law license of Neil R. McKloskey, Green Bay, for 60 days effective Aug. 17, 2009 and ordered McKloskey to pay the full $37,431.08 cost of the disciplinary proceedings. Disciplinary Proceedings Against McKloskey, 2009 WI 65.
McKloskey stipulated to eight counts of misconduct concerning his client trust account. McKloskey deposited client funds to an account that was not designated as a trust account and was not an interest-bearing account with interest being paid to the Wisconsin Trust Account Foundation Inc.; failed to obtain an overdraft agreement from his bank and file a copy with the OLR; failed to create and maintain complete records of client funds; had shortfalls in the account used for client funds such that the balance in the account was less than the total amount he was supposed to be holding for clients; left legal fees in the account after the fees had been earned; failed to pay, or give credit to, three clients whose funds were on deposit in the account for a prolonged period; and inaccurately certified on his State Bar dues statements that he had complied with trust account record-keeping requirements. This conduct was in violation of former SCR 20:1.15(a), (c)(1)b., (j), (n), (e), (b), and (g) (all effective before July 1, 2004); former SCR 20:1.15(h)(1), (h)(8), and (f) (effective between July 1, 2004 and June 30, 2007); and SCR 20:1.15(b)(2), (c)(1m), (b)(1), (b)(3), (d), and (i)(4).
An additional three counts of misconduct concerned McKloskey’s representation of a man and a woman, who were married to each other when the representation began, and their defunct business in various collection matters. The couple went through an acrimonious divorce while
McKloskey was representing them. After the divorce, McKloskey obtained a $283,000 judgment on behalf of the former business. During the next several years, McKloskey collected full payment of the judgment but failed to give the ex-husband any notice that McKloskey had received any funds and failed to pay him any portion of the proceeds. Instead, McKloskey paid the proceeds to the ex-wife and various creditors based solely on the ex-wife’s directives. Several years later, when the ex-husband requested an update on the status of the collection,
McKloskey provided the ex-husband with an incomplete accounting.
By providing representation in which both the man and the woman had an interest during and after their divorce, without consulting with both parties about the implications of the common representation and without obtaining their written consent to the potential conflict after consultation, and by subsequently taking actions on behalf of one client that adversely affected the other, McKloskey violated former SCR 20:1.7(b) (effective before July 1, 2007). By failing to keep the ex-husband informed about the collection efforts and failing to consult with him regarding distribution of the proceeds, McKloskey violated former SCR 20:1.4(a) (effective before July 1, 2007) and current SCR 20:1.4(b). By failing to give written notice to the ex-husband of McKloskey’s receipt of more than $200,000 in which the ex-husband asserted or had a financial interest, failing to pay him any of the funds, and failing to provide him with an accounting of the funds, McKloskey violated former SCR 20:1.15(b) (effective before July 1, 2004).
McKloskey had been privately reprimanded in 2003 for unrelated misconduct.
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Disciplinary proceedings against Thomas J. Molinaro
On July 1, 2009, the supreme court suspended the law license of Thomas J. Molinaro, Wausau, for 60 days, effective Aug. 10, 2009, and ordered him to pay $12,000 of the cost of the disciplinary proceeding. Disciplinary Proceedings Against Molinaro, 2009 WI 61.
The suspension was based on eight violations of the Rules of Professional Conduct. Five violations involved Molinaro’s representation of a client in a personal injury matter. In 2001, Molinaro received settlement funds of more than $1 million for the client that he deposited to an account that was not an identifiable trust account and to which he also temporarily deposited personal funds, contrary to former SCR 20:1.15(a) (effective before July 1, 2004). Molinaro failed to notify TIG, the worker’s compensation carrier in the client’s case and a co-plaintiff in the action, of his receipt of the settlement funds. He also failed to give TIG a full accounting of the settlement and failed to pay the full amount of TIG’s lien for more than six months after receiving the funds, contrary to former SCR 20:1.15(b) (effective before July 1, 2004).
Molinaro transferred the client’s settlement funds to his business checking account, in which he kept a portion of the settlement as his fees and costs without giving the client any settlement statement or accounting, contrary to former SCR 20:1.15(d) (effective before July 1, 2004). Molinaro failed to keep records regarding his receipt and disbursement of the settlement funds, contrary to former SCR 20:1.15(e) (effective before July 1, 2004). Finally, on Dec. 31, 2001, Molinaro temporarily transferred $44,500 from his business account back to the account in which the settlement funds had originally been deposited, asserting that the transfer was due to a dispute with TIG. The transfer was a means of shifting income from 2001 to 2002, thereby achieving an unlawful federal tax advantage. Molinaro thereby violated SCR 20:8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.
The remaining violations concerned Molinaro’s client trust account. Molinaro failed to keep required trust account records, contrary to former SCR 20:1.15(e) (effective before July 1, 2004). He deposited $15,919.80 in earned fee payments to his trust account for the purpose of avoiding taxation of those fee payments in the year in which they were received, thereby commingling personal and client funds in the trust account, contrary to former SCR 20:1.15(a) (effective before July 1, 2004), and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, contrary to SCR 20:8.4(c).
The court found that the OLR had failed to meet its burden of proof on six other counts that were alleged in the disciplinary complaint.
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