Private Reprimand Summaries
The Wisconsin Supreme Court allows the Board of Attorneys
Professional Responsibility (BAPR) to publish for educational purposes
in an official State Bar publication a summary of facts and professional
conduct rule violations in matters in which BAPR has imposed private
reprimands. The summaries do not disclose information identifying the
reprimanded atttorneys.
The following summaries of selected private reprimands are printed to
help attorneys avoid similar misconduct problems. Some of the summaries
indicate violations of the rules that were in effect prior to Jan. 1,
1988. The current rules proscribe the same types of misconduct.
Incompetence, obtaining prospective malpractice waiver from
client
Violations of SCR 20:1.1 and 20:1.8(h)
An attorney drafted a limited partnership agreement on behalf of a
client (the general partner). The attorney thereafter failed (due to his
general unfamiliarity with the subject) to ensure that the partnership
acted in conformance with applicable law, particularly by accepting and
accounting for funds placed by hundreds of investors in excess of the
unregistered 15 permitted under the partnership, without first
ascertaining whether those investments might also be exempt from
registration under applicable law, in violation of SCR
20:1.1, which requires a lawyer to provide competent representation
to a client.
Upon his release of $113,000 in investment funds to the client,
without authorization from the Wisconsin Division of Securities or the
client's then-securities counsel, the attorney obtained from the client
a Release and Indemnification, under which the client agreed to hold the
attorney harmless for any losses the client might incur as a result of
the attorney's actions, "including but not limited to record keeping and
trust account management," in violation of SCR
20:1.8(h).
The attorney had no prior discipline.
Incompetence, Neglect, Failure to Communicate, Disclosing
Confidences, and Fee-Splitting
Violations of SCR 20:1.1, 20:1.3, 20:1.4(a) and (b),
20:1.6(a), and 20:1.5(e)
The attorney represented a plaintiff in a personal injury action.
Less than two months before trial, the attorney, without the client's
knowledge or consent, asked another attorney to assist with trial of the
case and agreed to split the fees with the assisting lawyer.
A new judge was appointed nine days before trial, requiring a request
for substitution to be filed within 24 hours of receipt of the
assignment notice. Without any consultation with the client, the
assisting attorney allegedly filed a request for substitution via
regular mail, rather than faxing or hand-delivering it so that it would
be received within the 24-hour deadline. The request was not copied to
the judge or opposing counsel.
Five days before the scheduled trial, the client was for the first
time informed that another attorney had been brought into the case and
that there would be no trial because of the request for substitution.
The client called to confirm the continuance with the court and was told
the trial was still scheduled to go forward, but the attorney
nevertheless again assured the client that the trial would not be held.
The judge and the defendants did appear for trial, but no one appeared
on behalf of the plaintiff. The case was subsequently dismissed for
failure to prosecute.
BAPR found that by failing to meet statutory requirements in the
motion for substitution of judge, by failing to seek confirmation that
the trial had been continued, and by failing to appear at trial, the
attorney failed to provide competent representation, contrary to SCR
20:1.1; and failed to act with reasonable diligence and promptness,
contrary to SCR
20:1.3. By failing to promptly inform the client about involving
another attorney in the trial of the case and by failing to discuss the
request for substitution of judges with the client, the attorney failed
to adequately communicate with the client, contrary to SCR
20:1.4(a) and (b). Finally, by showing the client's file to another
attorney and agreeing to split legal fees with that attorney without the
client's prior knowledge or consent, the attorney violated SCR
20:1.6(a), which proscribes disclosure of information relating to
representation of a client without the client's consent; and SCR
20:1.5(e), which allows a division of fees only when the client is
advised of and does not object to the participation of all the lawyers
involved.
The attorney had no prior discipline.
Adverse Party Communication - Guardianship
Violation of SCR 20:4.2
An attorney represented the petitioner on a Petition for Protective
Placement. Adversary counsel for the prospective ward filed a motion
seeking to vacate a previous order appointing the petitioner as
guardian. A hearing on that motion was held on Dec. 23 and the order was
vacated; however, the petition for protective placement was not
dismissed. Both attorneys appeared at the Dec. 23 hearing. Both
attorneys drafted proposed orders, and the attorney for the petitioner
copied opposing counsel with her proposed order on Dec. 29.
On Dec. 25, the attorney for the petitioner visited the proposed ward
in the nursing home where she was residing. The attorney obtained the
proposed ward's signature on a Durable Power of Attorney and a Power of
Attorney for Health Care to the petitioner. Both of these documents were
drafted and signed by the attorney for the petitioner. The proposed
ward's attorney did not give consent for the meeting nor was he advised
of the meeting. The proposed ward was an elderly individual who was
diagnosed with dementia and taking psychotropic medication.
BAPR found that the attorney for the petitioner violated SCR
20:4.2 by meeting with the proposed ward without the knowledge or
consent of the proposed ward's attorney.
The attorney had no prior discipline.
Lack of diligence, failure to communicate, failure to cooperate with
BAPR
Violation of SCR 20:1.3, SCR 20:1.4(a), and SCR
22.07(3)
An attorney was retained to represent a client in a "slip and fall"
case in February 1997. An offer had been made to the client's previous
attorney, who withdrew when he accepted new employment. After meeting
with the client, the attorney contacted the insurance adjuster who was
handling the case and had several discussions regarding the case, but
did not reach a settlement. The attorney again spoke to the adjuster in
early July 1997 (the statute of limitations would run on July 5, 1997).
They discussed a new settlement amount, but the attorney failed to
finalize the settlement or file a lawsuit before the statute ran. The
attorney did not speak to the client to inform her of what occurred,
despite the client's several attempts to contact the attorney. The
adjuster closed his file 60 days after the statute ran. During the
investigation of this matter, the attorney failed to respond to seven
letters from BAPR, despite acknowledging receipt of those letters.
BAPR found that, by failing to settle the claim or file suit before
the statute of limitations ran, the attorney violated SCR
20:1.3; by failing to respond to the client's attempts to reach her
and failing to inform the client of the status of her case, the attorney
violated SCR
20:1.4(a); and that by failing to respond to BAPR letters, the
attorney violated SCR
22.07(3).
The attorney had no prior discipline.
Unwritten contingent fee agreement, and improper disbursement of
funds
Violations of SCR 20:1.5(c), 20:1.15(b),
20:3.4(c)
An attorney represented a woman and her minor children on injury
claims pursuant to a contingent fee agreement that was not reduced to
writing, in violation of SCR
20:1.5(c). In violation of SCR
20:1.15(b) and 20:3.4(c),
the attorney disbursed certain funds to the woman, when by court order
those funds were to be paid to health-care providers who treated the
minor children.
Lack of diligence, conflict of interest
Violations of SCR 20:1.3 and 20:1.7(b)
In one matter, the attorney represented an estate, and violated SCR
20:1.3 by failing to make any progress for about 16 months.
In the second matter, the attorney undertook representation of an
alleged participant in illegal drug activities, while already
representing another suspect in the same alleged activities. The
attorney violated SCR
20:1.7(b) by failing to obtain any conflict waiver from the first
client. A separate violation of SCR 20:1.7(b) occurred when the attorney
failed to engage the second client in the level of consultation required
under SCR 20:1.7(b). The attorney had that client sign a purported
conflict waiver that referred to (but did not identify) "another person"
whom the attorney also represented.
Lack of diligence, failure to communicate, practicing law while
administratively suspended
Violation of SCR 20:1.3, SCR 20:1.4(a) and (b), and SCR
20:5.5(a)
In 1995 an attorney was appointed by the Public Defender's Office to
represent a client in an appeal of a criminal conviction. The attorney
eventually formed the belief that the appeal lacked merit, but failed to
ever file a no-merit brief or withdraw. The client became concerned over
the lack of attorney contact and made several attempts to contact the
attorney by letter and phone, to which the attorney failed to
respond.
The attorney prepared a motion to withdraw after the grievance had
been filed, but failed to ever file the motion. The attorney contacted
the Public Defender's Office in early 1997 to inform them that he wished
to withdraw. However, successor counsel had already been appointed after
the client had contacted the Public Defender's Office regarding the lack
of communication from the attorney.
The attorney's law license was later suspended for failure to comply
with CLE requirements. The attorney claimed not to have received notices
regarding the suspension but stated that he was aware that his license
would be suspended for his failure to meet the requirements and his
failure to pay dues. Subsequent to his suspension, the attorney appeared
in traffic court on behalf of friends on two occasions.
BAPR found that by failing to either advance the client's appeal or
withdraw for almost two years, the attorney failed to act with
reasonable diligence and promptness in representing a client, in
violation of SCR
20:1.3. BAPR also found that by failing to respond to the client's
reasonable requests for information on the status of the appeal and
failing to advise the client of his belief that the appeal lacked merit,
the attorney violated SCR
20:1.4(a) and (b). BAPR further found that, by appearing in traffic
court after his license had been administratively suspended, the
attorney engaged in the practice of law in violation of the regulation
of the legal profession in that jurisdiction, in violation of SCR
20:5.5(a).
The attorney had no prior discipline.
Neglect, failure to communicate, improper withdrawal
Violations of SCR 20:1.3, 20:1.4 and 20:1.16(d)
The attorney represented a client in an employment discrimination
matter. The attorney failed to respond to two requests for information
from the state Equal Rights Division, causing that complaint to be
dismissed.
The attorney then commenced a federal action. The attorney says that
after the client's deposition was taken, the attorney decided the case
was not worth pursuing and advised the client to get another attorney.
The client disputes being so advised. Six months later, the attorney
received a motion for summary judgment. The attorney didn't send a copy
of the motion to the client and didn't respond to the motion, causing
the client's action to be dismissed.
BAPR found that the attorney's failure to respond to requests for
information from the state Equal Rights Division and to the motion for
summary judgment in the federal action constituted a failure to act with
reasonable diligence and promptness, contrary to SCR
20:1.3; that the attorney's failure to notify the client about the
motion for summary judgment and to confer with the client about whether
the client wished to pursue his action constituted a failure to
adequately communicate, contrary to SCR
20:1.4; and that the attorney's apparent withdrawal from the case,
without notice to the court, to adverse counsel or any written notice to
the client, and without taking the necessary steps to protect the
client's interests, was contrary to SCR
20:1.16(d).
The attorney had not previously been disciplined
Accepting settlement without client's authorization, failing to
protect a third party's interests in a settlement
Violations of SCR 20:1.2(a) and SCR 20:1.15(b)
In July 1994 an attorney was retained to represent a man regarding an
automobile accident. While that case was pending, the man was
incarcerated for an unrelated probation violation. In October 1996,
while the client was still incarcerated, the respondent attorney
received a settlement offer from opposing counsel. The attorney failed
to inform the client of the offer and settled the case for approximately
$11,000, without the client's authorization, contrary to SCR
20:1.2(a). When the client learned about the settlement, he refused
to sign a release of his claim, and opposing counsel ultimately brought
a motion to enforce the settlement. The attorney contended that the
client gave his father the authority to settle the case, and that the
father accepted the settlement offer. The client and his father both
deny this, and the attorney had no documentation of such an
arrangement.
The attorney also represented a woman regarding an October 1992
automobile accident. In March 1993 the attorney sent a protection letter
to the woman's chiropractor, promising to pay the charges for the
woman's care from any settlement proceeds that were received. In April
1993 the attorney signed a doctor's lien, further agreeing to withhold
funds from the settlement to pay the chiropractic charges. The case was
settled for approximately $58,000 in February 1996. The attorney failed
to promptly notify the chiropractor of his receipt of the settlement,
and further failed to promptly disburse the funds to which the
chiropractor was entitled, in violation of SCR
20:1.15(b).
The misconduct in the first matter was aggravated in that the
attorney's personal interests appeared to take precedence over the
client's interests. In the second matter, the financial harm to the
chiropractor was an aggravating factor.
The attorney had no prior discipline.
Failing to file targeted direct mail advertisements with BAPR
Violation of SCR 20:7.3(b)
An attorney sent targeted direct mail advertisements to prospective
clients for five years without filing a copy of said advertisements with
BAPR within five days of dissemination, as required by SCR
20:7.3(b). The conduct was aggravated by the attorney's prior
discipline, which included two public reprimands and a 60-day
suspension.
Wisconsin
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