Wisconsin Lawyer
Vol. 83, No. 5, May 2010
Lack of Diligence
An attorney represented a woman (the client) in her divorce. The divorce was contentious and complicated by the husband’s efforts to conceal assets. As a result, the client incurred substantial legal fees. The court granted the divorce and found that several properties located out of state were part of the marital estate and subject to division. The court ordered the properties sold and the proceeds divided. The ex-husband also was required to pay the client approximately $29,000 to equalize the division of the marital estate.
When the divorce judgment was entered, the client owed the attorney approximately $11,500 for legal fees. The attorney filed a lien against the client’s homestead to secure payment of the fees. The client sold the home and the attorney received $10,000 from the proceeds, which the firm applied toward the client’s outstanding balance. The attorney agreed to forego collecting on the remaining balance for several months, at which time the client was to begin making monthly payments of $200.
The client’s ex-husband failed to comply with the court’s judgment, necessitating the filing of motions by the client’s attorney, including a motion for contempt. The ex-husband did not appear at the motion hearing. The court issued a bench warrant for his arrest, found him in contempt, and ordered him to pay the client approximately $31,000 for amounts owed pursuant to the divorce judgment and to contribute approximately $3,600 toward attorney fees the client incurred in seeking his compliance with the judgment. The court instructed the attorney to draft an order consistent with the ruling, which included a judgment lien to be placed on property owned by the ex-husband.
Approximately one month after the court’s ruling, the client learned that her ex-husband had arranged to sell the property. She contacted her attorney to inquire whether the lien had been recorded. The attorney had not drafted the order stemming from the hearing and thus the lien had not been recorded. The sale of the property closed shortly thereafter. The amounts owed by the man to the client were not paid out of the sale proceeds. The ex-husband was murdered about one week after the sale. His assets then became subject to probate in another state. A few days after the ex-husband’s death, the attorney obtained the court order and recorded the judgment lien. However, because the property had been sold, the lien had no effect.
In explaining his failure to act sooner to effectuate the court’s decision regarding the contempt motion, the attorney said, “I had an obligation to prioritize my work load based on the individual clients who diligently were paying their bills in a timely manner.” The proper course of action, however, to address the client’s failure to pay legal fees would have been for the attorney to withdraw from the representation after giving the client reasonable warning that unless she met her financial obligation to the firm, the representation would be terminated. It is not permissible under the Rules of Professional Conduct for a lawyer to disregard the obligation to act with reasonable diligence and promptness because a client has failed to pay legal fees. The client, unaware that her attorney did not intend to promptly act on the court’s decision, could do nothing to enforce the court’s order. The attorney, by failing to promptly prepare the written order effectuating the court’s contempt finding against the ex-husband and to record the judgment lien against his property, failed to act with reasonable diligence and promptness in representing the client and thereby violated SCR 20:1.3.
Top of Page
Incompetence; Failure to Provide Diligent Representation; Disregard of Obligation to Tribunal; Failure to Communicate; Failure to Timely Return File
Violations of SCR 20:1.1, 20:1.3, 20:3.4(c), 20:1.4(a)(3) and (4), and 20:1.16(d)
An attorney hired to probate an estate failed to determine and to take reasonable steps to correctly file estate tax returns for the client in violation of SCR 20:1.1, which requires competent representation. The attorney failed for five months to take any action in the matter and failed to appear at a show-cause hearing to turn over the estate files, in violation of SCR 20:1.3, which requires diligent representation, and SCR 20:3.4(c), which states, “A lawyer shall not knowingly disobey an obligation under the rules of a tribunal.”
In addition, the attorney failed to respond to the client’s repeated inquiries about the taxes and the estate closing, contrary to SCR 20:1.4(a)(3) and (4), which require that an attorney keep the client reasonably informed and comply with the client’s reasonable requests for information. The attorney also failed to promptly provide the client’s file to successor counsel, contrary to SCR 20:1.16(d).
The attorney had no prior discipline.
Top of Page
Failure to Provide Diligent Representation
An attorney appointed by the State Public Defender to provide postconviction representation neglected to file a timely petition for review, contrary to SCR 20:1.3, which requires an attorney to act with reasonable diligence and promptness in representing a client. The attorney had appealed the circuit court decision to the court of appeals and the attorney self-reported to the Office of Lawyer Regulation (OLR).
The attorney had a prior public reprimand and a private reprimand.
Top of Page
Lack of Diligence; Failure to Communicate; Failure to Provide Itemized Billing; Failure to Refund Unearned Fees
Violations of SCR 20:1.3, 20:1.4(a)(3) and (4), 20:1.4(b), 20:1.5(b)(3), and 20:1.16(d)
In May 2007, an attorney agreed to represent an Illinois client on a municipal charge of first-offense operating while intoxicated. On the day of trial, neither the attorney nor the client appeared in court. The municipal court judge entered a default judgment against the client, who received a fine, had his driving privileges revoked, was required to participate in an alcohol evaluation and treatment program, and lost his Illinois commercial driver’s license.
The client called the attorney to request that he file an appeal. The attorney agreed to file an appeal, but he then failed to do so within the 20-day time limit. The attorney sought relief from the default judgment and filed motions for relief and reconsideration with the municipal court, but the attorney was unable to persuade the judge to vacate the judgment.
After granting of the default judgment, the client attempted to contact the attorney on numerous occasions, with limited success. The attorney’s own files demonstrated that the attorney had not forwarded correspondence and pleadings to the client. When the client requested in writing that the attorney refund his fee, the attorney did not respond nor did he provide an accounting of his fee.
By failing to appear at the client’s trial, which resulted in a default judgment, and failing to file a timely appeal of the judgment, after agreeing to do so, the attorney violated SCR 20:1.3, which provides, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
By failing to respond to the client’s numerous telephone requests and failing to forward to the client copies of correspondence and pleadings, the attorney violated SCR 20:1.4(a)(3) and (4), which provide that “[a] lawyer shall: … (3) Keep the client reasonably informed about the status of a matter; and (4) Promptly comply with reasonable requests by the client for information.”
By failing to explain to the client the ramifications of the default judgment and the untimely appeal, the attorney violated SCR 20:1.4(b), which provides, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
By failing to provide the client with an itemized billing statement and a refund of any unearned portion of the paid fee, the attorney violated SCR 20:1.5(b)(3), which states, “A lawyer shall promptly respond to a client’s request for information concerning fees and expenses…,” and 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 … refunding any advance payment of fee that has not been earned or incurred.”
As a condition of the private reprimand, the attorney agreed to refund to the client the full fee, plus interest at 5 percent.
The attorney had no prior discipline.
Top of Page
Failure to Have Written Fee Agreement
Violations of SCR 20:1.5(b)(1) and 20:1.5(b)(2)
An attorney represented a client in a divorce. Notwithstanding the client’s allegations to the contrary, an OLR investigation concluded that the substance of the representation was satisfactory. The total fee sought by the attorney was reasonable. The attorney, however, did not have a written fee agreement in a circumstance in which one was required by SCR 20:1.5(b)(1) and (b)(2). Because the attorney had been publicly disciplined within the preceding five years, under SCR 22.10(3)(f) he was ineligible to be diverted to an alternative-to-discipline program.
Top of Page
Wisconsin Lawyer
