Wisconsin Lawyer
Vol. 80, No. 5, May 2007
Probate neglect
Violation of SCR 20:1.3
An attorney neglected the probate of five separate estates, contrary to SCR 20:1.3, which requires an attorney to act with reasonable diligence and promptness in representing clients. Each of the five estates eventually was closed, but not without considerable delay and commitment of judicial resources. The attorney had no prior discipline.
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Fairness to opposing party and counsel
Violation of SCR 20:3.4(f)
A lawyer represented a party who contested the validity of a will. The will contest was scheduled for an evidentiary hearing, at which a lawyer who had represented the testator in personal injury (PI) cases before the testator's death was expected to testify.
Before the hearing, the lawyer representing the will contestant emailed the PI lawyer implying that the PI lawyer had promoted fraudulent litigation on the decedent's behalf. The lawyer representing the will contestant suggested that the PI lawyer should refuse to testify and reminded the PI lawyer of the right to remain silent under the Fifth Amendment. The PI lawyer testified at the hearing.
In advising the PI lawyer not to testify at the hearing, the lawyer representing the will contestant violated SCR 20:3.4(f), which provides that a lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party unless the person is a relative or an employee or other agent of a client and the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
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Engaging in prohibited financial transaction with client
Violation of SCR 20:1.8(e)
A Wisconsin lawyer was hired to represent a man in a PI action. The client was having financial problems and the lawyer assisted the client in applying for a loan from a company that loans funds against future settlement proceeds. The loan did not come through as quickly as the client anticipated and the client faulted his attorney for the delay.
The lawyer, to help out his client, drew a check from his business account to pay the client's mortgage payment. The check was returned for insufficient funds and the client was assessed a bad-check charge. The check was paid when presented a second time.
By making a mortgage payment on behalf of his PI client, the lawyer violated SCR 20:1.8(e), which states, "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation."
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Engaging in prohibited sexual relationship with client
Violation of SCR 20:1.8(k)(2)
A woman hired an attorney in March 2001 to represent her in a post-judgment custody and placement dispute concerning the woman's daughter. Approximately one month after the woman hired the attorney, the two began a consensual sexual relationship. The attorney's representation of the woman in the custody and placement dispute continued from March 2001 through June 2002, during which the relationship between the woman and the attorney continued. The attorney also represented the woman in a child support matter between August 2002 and December 2002. The attorney again represented the woman in November 2003, after the woman had been taken into police custody for an unpaid court fine. The attorney represented the woman following her arrest only to the extent that he arranged for paying the fine on the woman's behalf. The attorney also represented the woman in August 2004, by appearing by telephone on her behalf regarding a restraining-order proceeding initiated by another party. The woman subsequently was involved in other litigation, but the attorney provided no representation of the woman in that matter.
By engaging in consensual sexual relations with his client, when the attorney did not have a sexual relationship with the client before their attorney-client relationship was established, the attorney violated SCR 20:1.8(k)(2), which states, "A lawyer shall not have sexual relations with a current client unless a consensual relationship existed between them when the lawyer-client relationship commenced."
The attorney had no prior discipline.
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Failing to consult client, to attend pretrial conference, to follow up with court and reopen default judgments, and to keep client informed
Violations of SCR 20:1.2(a), 20:1.3, and 20:1.4(a)
In August 2004, a man retained an attorney to represent his minor son, who had been charged with municipal trespass and battery violations. Although the attorney had requested an adjournment of a pretrial conference, he never heard anything back from the court. The attorney failed to attend the pretrial conference, and default judgments were entered against the client.
The attorney did not follow up on the request for an adjournment or discover that the court had entered default judgments until early 2005, when the client's father contacted the attorney after receiving a letter from the court that informed him the default judgments had been entered.
In May 2005, the attorney's firm filed a motion to reopen. The client's father never received any information from the attorney regarding these efforts. Between February 2005 and October 2005, the attorney's secretary returned only two of the client's father's calls and provided little information regarding the case status.
In September 2005, the attorney's firm entered into a stipulation with the city attorney, which the court approved. The attorney did not consult with either the client or the client's father regarding the terms of such stipulation, in which a plea of no contest to battery had been entered and a fine issued. In October 2005, the attorney's firm sent the client a letter outlining the stipulation terms.
By failing to consult with the client and his father regarding the terms of the plea stipulation, including a plea of no contest to battery and a fine, that the attorney's office entered into on the client's behalf with the city attorney, the attorney violated SCR 20:1.2(a), which provides, "A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall inform a client of all offers of settlement and abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case or any proceeding that could result in deprivation of liberty, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify."
By failing to attend the pretrial conference or secure an adjournment of the pretrial conference, failing to follow up with the court until the client's father made the attorney aware of the default judgments several months after they were entered, and failing to reopen the matters until nearly a year after the default judgments were entered, 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 keep the client and his father informed of the status of the matters, particularly the entering of default judgments against the client and the ensuing efforts to reopen the matters, the attorney violated SCR 20:1.4(a), which provides, "[A] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."
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Criminal traffic convictions
Violations of SCR 20:8.4(b), and 21.15(5) via 20:8.4(f)
An attorney engaged in conduct leading to criminal convictions of third offense operating while intoxicated and operating after revocation, contrary to SCR 20:8.4(b), which states, "It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." The attorney also failed to report his convictions to the OLR and the supreme court clerk, contrary to SCR 21.15(5), which is enforceable under the Rules of Professional Conduct via SCR 20:8.4(f), which states, "It 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." The attorney had no prior discipline.
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Failing to pursue debt collection, delaying filing of claim against landlord, and failing to inform client of claim status
Violations of SCR 20:1.3 and 20:1.4(a)
In the first of two matters, in September 2003, a man hired an attorney to represent him in his divorce. In January 2005, after the divorce judgment was entered, two undisclosed outstanding debts of the ex-wife were discovered. The attorney told the client to send him the paperwork and said that he would take care of the matter, but the attorney failed to do so for many months and failed to inform the client of the matter's status, despite receiving numerous telephone calls from the client. The attorney did not contact the creditors until September 2005. Ultimately, the client settled the matter with the creditors himself in November 2005.
By failing to pursue the resolution of the debt collection matter between January 2005 and September 2005, which resulted in the client incurring additional interest and other costs, 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 keep the client informed of the debt collection status and by failing to return the client's telephone calls, the attorney violated SCR 20:1.4(a), which provides, "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."
In the second matter, a woman hired the attorney in February 2005 to represent her in a dispute with the landlord of her commercial property. After the client moved into the building and while she was setting up her business, she discovered that the roof leaked, which caused damage to her property. The landlord said he would fix the roof but never did so. The attorney indicated the client had a very viable claim and agreed to take the case.
Between February 2005 and March 2006, the attorney did not file a claim against the landlord or otherwise proceed with the matter. The client contacted the attorney numerous times regarding the matter, but he did not respond. In April 2006, the attorney sent the client a draft complaint, which was approved by the client and then filed by the attorney.
By failing to proceed with the matter and file a claim for approximately one year, 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 keep the client informed of the case status and respond to her requests for information regarding the case, the attorney violated SCR 20:1.4(a), which provides, "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."
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Making false statement to tribunal; making misrepresentations during investigation
Violations of 20:3.3(a)(1) and 22.03(6)
An attorney represented respondents in a civil action. During the representation the attorney filed a witness list and an affidavit. In the affidavit, the attorney asserted that he had contacted certain witnesses, but the attorney had not contacted any of the witnesses listed in the affidavit before he signed it.
In a response to the OLR the attorney made intentional misrepresentations regarding the nature and timing of his contact with the witnesses identified in the affidavit.
By signing and filing with the court an affidavit that contained false assertions regarding prior contact with listed witnesses, the attorney knowingly made a false statement of fact to a tribunal, in violation of SCR 20:3.3(a)(1). By making intentional misrepresentations to the OLR regarding his affidavit and his contact with the listed witnesses, the attorney willfully made misrepresentations during the investigation in violation of SCR 22.03(6) and therefore violated a supreme court rule regulating the conduct of lawyers, contrary to SCR 20:8.4(f).
The attorney has no prior discipline.
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Criminal defense neglect; failure to communicate
Violations of SCR 20:1.3 and 20:1.4(a)
A criminal defense attorney neglected to timely file a notice of intent to seek postconviction relief on behalf of her client, contrary to SCR 20:1.3, which requires an attorney to act with reasonable diligence and promptness in representing clients. The client requested that his attorney file the notice, but the attorney did not do so until after the client filed a grievance. The attorney also failed to keep the client reasonably informed of the status of a matter and failed to comply with the client's reasonable request for information, in violation of SCR 20:1.4(a). The attorney had no prior discipline.
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Failure to act with reasonable diligence
Violation of SCR 20:1.3
A lawyer represented an imprisoned man in a real estate transaction. The man wanted to transfer title of rental property to his girlfriend in exchange for $50,000 to be paid in monthly installments of $1,100 starting six months after the mortgage was signed. A quit claim deed was executed and recorded two months after the mortgage was signed. The lawyer sent a copy of the quit claim deed to the girlfriend. He did not record the mortgage and he cannot locate the original.
The girlfriend defaulted on the mortgage payments and sold the property while the client was still incarcerated. She was able to sell the property without satisfying the mortgage because no mortgage had been recorded. The girlfriend cannot be located. The lawyer's failure to record the mortgage in a timely fashion so as to protect the client's interest in the property and his failure to track the location of the original mortgage violated SCR 20:1.3, which states, "A lawyer shall act with reasonable diligence and promptness in representing a client."
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