Wisconsin Lawyer
Vol. 79, No. 7, July
2006
Lawyer Discipline
The
Office
of Lawyer Regulation (formerly known as the Board of Attorneys
Professional Responsibility), an agency of the Wisconsin Supreme Court
and component of the lawyer regulation system, assists the court in
carrying out its constitutional responsibility to supervise the practice
of law and protect the public from misconduct by persons practicing law
in Wisconsin. The Office of Lawyer Regulation has offices located at
Suite 315, 110 E. Main St., Madison, WI 53703.
Medical Incapacity Proceeding against Charity A.
Reynolds (n.k.a. Charity A. Harris)
On May 9, 2006, the Wisconsin Supreme Court indefinitely suspended
the law license of Charity A. Reynolds, Windsor, due to Reynolds'
medical incapacity. Medical Incapacity Proceedings Against
Reynolds, 2006AP444-D.
On Feb. 20, 2006, the Office of Lawyer Regulation (OLR) had filed an
SCR 22.34 petition seeking an indefinite suspension of Reynolds' law
license. On April 10, 2006, the OLR and Reynolds filed a stipulation
that Reynolds suffers from a medical incapacity that substantially
prevents her from performing the duties of an attorney to acceptable
professional standards.
Reynolds' law license had been suspended since Feb. 27, 2006, for her
failure to cooperate with the OLR in another matter.
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Disciplinary Proceedings against Keith H.S.
Peck
On May 9, 2006, the Wisconsin Supreme Court publicly reprimanded
Keith H.S. Peck, Honolulu, Hawaii, as discipline reciprocal to a public
reprimand imposed against Peck's Hawaii law license by the Hawaii
Supreme Court on May 26, 2005. Disciplinary Proceedings Against
Peck, 2006 WI 42.
The Hawaii public reprimand resulted from Peck's violation of the
rules of professional conduct in a Hawaii matter in which Peck was found
to have knowingly made a false statement of material fact or law to a
third person while representing a client, engaged in conduct involving
dishonesty, fraud, deceit, or misrepresentation, and used means that had
no substantial purpose other than to embarrass, delay, or burden a third
person while representing a client.
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Disciplinary Proceedings against Donald J.
Peterson
On May 5, 2006, the Wisconsin Supreme Court suspended the law license
of Donald J. Peterson, 51, Madison, for two years, effective
immediately. The court also ordered Peterson to pay $26,237 in
restitution to his former law firm and pay the costs of the disciplinary
proceeding. Disciplinary Proceedings Against Peterson, 2006 WI
41.
The court found that Peterson engaged in conduct involving
dishonesty, fraud, deceit, or misrepresentation, contrary to SCR
20:8.4(c), by directing clients to make checks for legal fees payable to
him instead of his law firm, by diverting more than $26,000 in fees
belonging to his law firm for his own personal use, and by pawning his
law firm's VCR. In addition, the court found that Peterson committed a
criminal act reflecting adversely on his honesty, trustworthiness, or
fitness as a lawyer in other respects, contrary to SCR 20:8.4(b), by
using cocaine.
The referee in the matter recommended an 18-month suspension of
Peterson's license. However, even absent an appeal, the court concluded
that more severe discipline was required and imposed the two-year
suspension originally sought by the OLR.
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Disciplinary Proceedings against Mark A.
Phillips
On May 12, 2006, the Wisconsin Supreme Court suspended the law
license of Mark A. Phillips, Brookfield, for one year. Disciplinary
Proceedings Against Mark A. Phillips, 2006 WI 43. The court also
ordered that, within 30 days of the order, Phillips pay restitution to a
client by satisfying two judgments the client had against him in the
amounts of $148,511.37 and $28,571.35, plus interest. The court further
ordered Phillips to pay the $9,911.79 cost of the disciplinary
proceeding.
The court adopted a referee's findings of fact and conclusions of law
and determined that Phillips engaged in seven instances of misconduct in
two separate matters. In the first matter, Phillips borrowed $20,000
from a client in 1998 and an additional $125,000 from the same client in
1999. Phillips twice violated SCR 20:1.8(a) in that: the terms of the
loans were not fair and reasonable to the client; the terms were not
transmitted in writing in a manner the client could reasonably
understand; Phillips failed to give the client an opportunity to seek
independent counsel; and Phillips failed to obtain the client's written
consent to the transactions.
Phillips also violated SCR 20:1.8(b) in that he used his knowledge of
the client's finances to obtain the loans. Further, Phillips violated
SCR 20:8.4(c) by failing to disclose to the client the extent of his
financial distress and the fact that there was a substantial risk that
Phillips would not repay the loans. Phillips also failed to close the
client's father's estate in a timely manner and caused the federal
estate tax return to be filed long after it was due, contrary to SCR
20:1.3. Finally, Phillips violated SCR 20:1.16(d) by failing to return
the client's files for more than four months, despite repeated
requests.
In the second matter, Phillips failed to file timely state income tax
returns for the years 1998 through 2001 and failed to pay state income
taxes when due, in violation of supreme court decisions regulating the
conduct of lawyers, contrary to SCR 20:8.4(f).
Phillips appealed from the referee's report and recommendation for
discipline but, after an independent review of the record, the court
rejected Phillips' arguments. Top of page
Disciplinary Proceedings against John F.
Scanlan
The Wisconsin Supreme Court suspended the law license of John F.
Scanlan, formerly of Fish Creek, and now residing in Illinois, for six
months effective June 7, 2006. Scanlan also was ordered to pay
restitution. Disciplinary Proceedings Against Scanlan, 2006 WI
38.
The suspension was based on multiple counts of misconduct involving
nine client matters. The misconduct included failing to provide
competent representation, contrary to SCR 20:1.1; neglecting a client
matter, contrary to SCR 20:1.3; depositing client funds in a business
account, contrary to former SCR 20:1.15(a); failing to deliver funds
held in trust to a client, contrary to former SCR 20:1.15(b) and SCR
20:8.4(c); failing to keep trust account records, contrary to former SCR
20:1.15(e); failing to return an unearned fee, contrary to SCR
20:1.16(d); making unidentified and unauthorized transfers from his
client trust account, contrary to SCR 20:8.4(c); failing to notify a
client and the court of an administrative license suspension, contrary
to SCR 22.26(1); and multiple failures to cooperate with the OLR's
investigation, contrary to SCR 22.03(2) and (6), that resulted in a
temporary license suspension. The court noted that mitigating factors
included the absence of any prior discipline, Scanlan's remorse and
ultimate cooperation, and Scanlan's mental health problems that are now
being successfully treated.
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Disciplinary Proceedings against Charles R.
Koehn
On May 19, 2006, the Wisconsin Supreme Court revoked the law license
of Charles R. Koehn, Green Bay, for 91 incidents of misconduct in 19
different client matters. Disciplinary Proceedings Against
Koehn, 2006 WI 50. The court also ordered Koehn to repay to the
Wisconsin Lawyer's Fund for Client Protection the sum of $29,582.50 and
to three clients the sums of $984, $800, and $1,500. The court further
ordered Koehn to pay the $2,959.58 cost of the disciplinary
proceeding.
Koehn's misconduct included two instances of practicing law while
suspended, contrary to SCR 10:03(6); 12 violations of SCR 22.03(2) and
SCR 20:8.4(f) for failing to cooperate with the OLR's investigations; 15
incidents of failing to protect clients' interests upon termination,
contrary to SCR 20:1.16(d); eight violations of SCR 22.03(6) for making
misrepresentations to the OLR; five instances of willfully failing to
cooperate with the OLR, contrary to SCR 22.03(6); 13 instances of lack
of diligence in client matters, contrary to SCR 20:1.3; 13 instances of
failing to communicate with clients, contrary to SCR 20:1.4(a); two
violations of SCR 20:1.2(a) for failing to consult with and abide by
clients' decisions; two violations of former SCR 20:1.15(a) for failing
to hold clients' funds in trust; two violations of SCR 20:3.3(a)(1) for
making false statements to tribunals; one instance of failing to give
sufficient explanations to allow clients to make informed decisions,
contrary to SCR 20:1.4(b); one instance of failing to provide competent
representation, contrary to SCR 20:1.1; three violations of SCR 22.26(1)
(a), (b), and (c) for failing to notify clients, courts, and parties'
attorneys of his suspension for nonpayment of dues; one violation of SCR
40.15, the attorney's oath, for offensive personality; three violations
of SCR 20:1.5(b) for failing to communicate to clients the basis or rate
of his fee; one conflict of interest in violation of SCR 20:1.7(b), when
the client's interests conflicted with Koehn's own pecuniary interest;
two instances of dishonesty, contrary to SCR 20:8.4(c); one violation of
SCR 20:8.4(d) for stating or implying the ability to improperly
influence a government official; and four violations of SCR 22.04(1) for
failing to cooperate with district committee investigations.
The court deemed it unnecessary to recite the facts pertaining to all
19 client matters, stating that the referee's findings "demonstrate
Attorney Koehn's flagrant and widespread infractions of the rules of
professional conduct." Rather, the court's opinion described one client
matter in detail as an example of Koehn's misconduct. In that matter,
among other things, Koehn accepted an $8,000 retainer from a family,
failed to hold the payment in trust, performed few, if any, services of
value in three different family matters, failed to refund the unearned
fee despite numerous requests, failed to act with reasonable diligence,
failed to communicate, and failed to respond to the OLR's investigative
requests. Additionally, Koehn told one family member, untruthfully, that
he was having Christmas dinner with the prosecutor in one of the
families' matters, that the prosecutor's brother, a judge, was also his
brother-in-law, and that Koehn was "connected."
Koehn had prior discipline. He received a private reprimand in 1991,
had his license suspended for 60 days in 1997 (Disciplinary
Proceedings Against Koehn, 208 Wis. 2d 128 (1997)), and received a
public reprimand in 2000. Additionally, Koehn's license was temporarily
suspended in 2005 for Koehn's failure to cooperate with the OLR, and the
license remained suspended until the date of his revocation.
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Disciplinary Proceedings against Lyle P.
Schaller
The Wisconsin Supreme Court suspended the law license of Lyle P.
Schaller, Cashton, for two years, effective June 9, 2006. Schaller also
was ordered to pay the $1,032.15 cost of the disciplinary proceeding.
The court further ordered Schaller to pay restitution to his former law
firm in the amount of $4,290.85 and to attend, during his suspension,
continuing legal education courses approved by the OLR. Disciplinary
Proceedings Against Schaller, 2006 WI 40.
Schaller's misconduct consisted of converting to his own use monies
that were delivered to his former law firm and failing to report the
amount converted from his former law firm as income on his tax returns,
in violation of SCR 20:8.4(c), which states, "[i]t is professional
misconduct for a lawyer to engage in conduct involving dishonesty,
fraud, deceit or misrepresentation." Schaller also practiced law on
various occasions between Nov. 1, 2003 and Feb. 18, 2004, for at least
11 clients while his license was suspended for his failure to pay
mandatory bar dues, contrary to SCR 10.03(6), and in violation of SCR
20:8.4(f), which states, "[i]t is professional misconduct for a lawyer
to violate a statute, supreme court rule, supreme court order or supreme
court decision regulating the conduct of lawyers."
Schaller had no prior discipline.
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Disciplinary Proceedings against Michael D.
Mandelman
On May 17, 2006, the Wisconsin Supreme Court suspended the law
license of Michael D. Mandelman, Milwaukee, for nine months, commencing
June 21, 2006, as discipline for professional misconduct related to
representation of five clients, and for misconduct unrelated to his
representation of clients. The court also ordered Mandelman to pay the
full $37,088.08 cost of the disciplinary proceedings. Disciplinary
Proceedings Against Mandelman, 2006 WI 45.
In the first matter, Mandelman represented a client in a lawyer
malpractice case and on a petition to reopen a custody case. Mandelman
did not reduce to writing the contingent fee agreement in the
malpractice case, in violation of SCR 20:1.5(c). In violation of SCR
20:1.3, Mandelman failed to file a petition to reopen the custody matter
and failed to pursue the malpractice case in a timely manner. Mandelman
violated SCR 20:1.8(h) by having the client sign, without the benefit of
independent counsel, a prospective waiver of claims against
Mandelman.
In the second matter, Mandelman represented a client who was injured
in a motorcycle accident. Mandelman violated SCR 20:1.3 by failing to
pursue the client's claims in a timely manner. Mandelman failed to
respond to certain of the client's requests for information, in
violation of SCR 20:1.4(a).
In a third matter, Mandelman was successor counsel in a client's
injury case. Mandelman violated SCR 20:1.3 by failing to file in court a
notice of substitution, which failure resulted in dismissal of the
client's case. Mandelman was responsible for the violation of SCR 20:1.3
by reason of his own conduct and, under SCR 20:5.1(c)(2), based on the
joint responsibility to represent the client as a partner in a law
firm.
In a fourth matter, Mandelman represented a client in an employment
claim against the client's former employer based on alleged sexual
harassment. Mandelman violated SCR 20:1.3 and SCR 20:5.1(a) by failing
to make reasonable efforts to ensure that his firm had in effect
measures giving reasonable assurance that all lawyers in the firm
conformed to the Rules of Professional Conduct, by the firm's failure to
file a response to the adverse party's answer and affirmative defenses,
by failing to submit a rebuttal to the adverse party's response, and by
failing to ensure that the client's witnesses telephoned an investigator
for the Equal Rights Division.
In a fifth matter, Mandelman represented a client in a personal
injury case following her involvement in a multi-vehicle accident.
Mandelman violated SCR 20:1.3 by failing to pursue the client's personal
injury claim in a timely manner. Mandelman was responsible for the
violation of SCR 20:1.3 by reason of his own conduct and, under SCR
20:5.1(c)(2), based on the joint responsibility to represent the client
as a partner in a law firm.
Unrelated to his representation of clients, Mandelman failed to file
income tax returns and to pay income taxes when due, thus violating a
standard of conduct for attorneys, contrary to SCR 20:8.4(f).
Mandelman's prior discipline consisted of a 1990 one-year suspension,
an 18-month suspension imposed in 1994, and a private reprimand issued
in 1999.
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Disciplinary Proceedings against Maureen B.
Fitzgerald
On June 2, 2006, the Wisconsin Supreme Court suspended the law
license of Maureen B. Fitzgerald, Milwaukee, for 90 days, effective the
date of the order. In addition, the court ordered that Fitzgerald pay
the $6,844.07 cost of the disciplinary proceeding. Disciplinary
Proceedings Against Fitzgerald, 2006 WI 58.
Fitzgerald's suspension was based on six counts of misconduct
relating to her representation of one client. In the fall of 1999, a
woman retained Fitzgerald to represent her in connection with two
automobile accidents. With regard to the second accident, Fitzgerald
failed to reduce to writing the contingent fee agreement, in violation
of SCR 20:1.5(c).
The other drivers in both accidents were uninsured, and uninsured
motorist coverage was available under the client's own insurance policy.
The client's insurance company paid only one medical bill, in the amount
of $159, on the client's behalf. The insurance company made inquiries to
Fitzgerald regarding both claims but did not receive prompt replies and,
therefore, closed out both files without a settlement. By failing to
reply to the insurance company's inquiries, resulting in closure of both
files without settlement, Fitzgerald violated SCR 20:1.3.
Fitzgerald informed the client that the insurance company was willing
to settle her claims for $5,000.22, in addition to the payment of the
client's medical bills. In fact, no such offer had been made. By
asserting to the client that such an offer had been made, and by failing
to accurately inform the client that no offer had been made and that in
fact the insurance company had closed both files without a settlement
being reached, Fitzgerald violated SCR 20:1.4(a).
To perpetuate the ruse that a settlement had been reached with the
insurance company, Fitzgerald deposited personal funds into her business
account and then transferred those funds into her trust account. By
depositing personal funds into her trust account, Fitzgerald violated
former SCR 20:1.15(a).
Fitzgerald then sent the client a check for $3,333.48 from her trust
account, representing the client's share of the alleged settlement
proceeds. Fitzgerald also forwarded to the client a document purporting
to release the adverse insurance company from further liability. Also,
Fitzgerald offered to forego her fees in order to placate the client,
who was unhappy about the length of time it took to obtain the
settlement. By asserting to the client that the insurance company had
made a settlement of her claims, by fabricating a release and forwarding
it to the client, by offering to forego her fees in order to perpetuate
the ruse that the insurance company had paid a settlement, and by
forwarding to the client a check purporting to be a settlement of her
claims, Fitzgerald violated SCR 20:8.4(c).
During the course of the OLR's investigation of this matter,
Fitzgerald advised OLR staff that the insurance company had agreed to
extend the applicable statute of limitation. Fitzgerald also provided
the OLR with a copy of the purported release of claims against the
insurance company. Further, Fitzgerald failed to inform OLR staff that
the funds sent to the client were Fitzgerald's personal funds. Finally,
Fitzgerald informed OLR staff that the insurance company had paid all of
the client's medical bills when further investigation revealed that
Fitzgerald had paid the bills from her business account. By asserting to
OLR staff that the insurance company had agreed to extend the applicable
statute of limitation when there had been no such agreement, by
providing OLR staff with the fabricated release, by failing to inform
OLR staff that the funds sent to the client were her personal funds, and
by failing to inform OLR staff that she had personally paid the client's
medical bills, Fitzgerald violated SCR 22.03(6).
The OLR sought a 60-day suspension. However, the referee recommended
a 90-day suspension based on Fitzgerald's persistent dishonesty, even
under oath. The court adopted the referee's recommendation.
Fitzgerald's law license had been suspended since May 9, 2006, for
her failure to cooperate with the OLR in other matters.
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Reinstatement of Jenelle Glasbrenner
On May 2, 2006, the Wisconsin Supreme Court reinstated the law
license of Jenelle Glasbrenner and ordered her to pay the $2,168.55 cost
of the reinstatement proceeding. Disciplinary Proceedings Against
Glasbrenner, 2006 WI 35.
On April 22, 2005, the court had suspended Glasbrenner's law license
for six months for professional misconduct consisting of overbilling the
State Public Defender for work she had performed. Disciplinary
Proceedings Against Glasbrenner, 2005 WI 50.
After a hearing on Glasbrenner's petition, a referee concluded, and
the court later agreed, that Glasbrenner had met the standards for
reinstatement. Based on the referee's recommendation, the court ordered
the reinstatement subject to the condition that Glasbrenner keep formal,
accurate, and contemporaneous accounting of her time to be entered into
her firm's billing system and further, that the OLR, for two years
following the reinstatement, supervise her in that regard and require
her to report to the OLR as requested with respect to her billing
practices.
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