Professional Discipline
The Board of Attorneys Professional
Responsibility, an arm of the Wisconsin Supreme Court, assists the court
in discharging its exclusive constitutional responsibility to supervise
the practice of law in this state and to protect the public from acts of
professional misconduct by attorneys licensed to practice in Wisconsin.
The board is composed of eight lawyers and four nonlawyer members, and
its offices are located at Room 410, 110 E. Main St., Madison, WI 53703,
and Room 102, 611 N. Broadway, Milwaukee, WI 53202.
Disciplinary proceeding against John M. Baker
The Wisconsin Supreme Court suspended the law license of John M.
Baker, 39, Milwaukee, for six months, effective Nov. 3, 1997, as
discipline for professional misconduct. The court also ordered that the
following conditions be imposed upon reinstatement of Baker's license:
1) a psychiatric evaluation; 2) if diagnosed as having a psychiatric
condition causally related to his professional misconduct, verification
of treatment and recovery prior to reinstatement; 3) for two years
following reinstatement, supervision of his practice by an attorney
approved by the Board of Attorneys Professional Responsibility
(BAPR).
In March 1996 the Wisconsin Court of Appeals ordered Baker to
withdraw a no merit report he had filed on behalf of a client in a
criminal appeal, to file a post-conviction motion within 20 days and to
inform the court that he had done so. When the court of appeals learned
that Baker had not complied with that order, it fined him $500 and
dismissed him from the case. Thereafter, Baker did not turn over the
client's file to successor counsel, despite a request to do so. The
court of appeals found Baker in contempt for failing to pay or make
arrangements to pay the $500 penalty previously ordered. The supreme
court found that Baker's failure to withdraw the no merit report and
file a post-conviction motion, as ordered by the court of appeals,
constituted a failure to act with reasonable diligence and promptness in
representing a client, contrary to SCR 20:1.3. His failure to comply
with that order and failure to pay, or notify the court of his inability
to pay, the $500 fine constituted knowing disobedience of the rules of
that court, in violation of SCR 20:3.4(c). His failure to turn over the
client's file to successor counsel violated SCR 20:1.16(d).
Additionally, Baker failed to cooperate with BAPR's investigation of
this matter, in violation of SCR 21.03(4) and 22.07(2) and (3).
While representing another client in a criminal matter, Baker did not
return to court as ordered and failed to appear at a pretrial
conference. When he did not appear at the rescheduled pretrial, the
court removed him as the client's attorney. Baker also failed to appear
at another client's preliminary hearing until five hours after it was
scheduled to be held. He had to be telephoned by court staff before
making two other appearances in that client's matter, and he did not
appear at all for a scheduled court appearance. The court found that
Baker failed to act with reasonable diligence and promptness in
representing these clients, in violation of SCR 20:1.3.
In March 1996, after filing a personal injury action on behalf of a
client, Baker did not respond timely to the defendant's written
interrogatories, did not appear at the hearing on their motion to compel
discovery, and failed to file a witness list, special damages list and a
permanency report within the deadline established by the scheduling
order. After failing to appear or have his client appear for a scheduled
deposition in February 1997, Baker told the court that he was
experiencing some personal mental health problems, and the court
adjourned the matter to allow him time to resolve them. Thereafter,
Baker did not appear at a scheduled motion hearing in the matter or at
the rescheduled hearing. The court found that Baker failed to act with
reasonable diligence and promptness, in violation of SCR 20:1.3.
In 1992 Baker consented to a private reprimand for neglecting a
client's wage claim matter and failing to return any of the client's
numerous telephone messages over three years.
Disciplinary proceeding against Paul R. Horvath
The Wisconsin Supreme Court has suspended the law license of Paul R.
Horvath, 51, Appleton, for six months, commencing Nov. 3, 1997.
In representing an out-of-state insurance company on a collection
matter, Horvath stipulated that he failed to comply with the client's
reasonable requests for information and failed to explain the status of
the matter to the extent reasonably necessary for the client to make
informed decisions about the representation, contrary to SCR 20:1.4(a)
and (b); that he failed to act with reasonable diligence and promptness
on behalf of the client, contrary to SCR 20:1.3; and that he made
misrepresentations to the client that he had pursued and collected on a
judgment when he had not, contrary to SCR 20:8.4(c). He also failed to
cooperate with BAPR's investigation, contrary to SCR 21.03(4) and
22.07(2); failed to keep client funds in a properly designated trust
account, contrary to SCR 20:1.15(a) and (c); and failed to designate his
client trust account as one that had interest that accrued to the
Wisconsin Trust Account Foundation Inc., contrary to SCR 20:1.15(c)(1)b.
Horvath had twice previously been publicly reprimanded for
misconduct.
Disciplinary proceeding against Robert T. Malloy
The Wisconsin Supreme Court suspended the law license of Robert T.
Malloy, 34, Milwaukee, for 90 days, commencing June 10, 1998,
consecutive to a previous one-year suspension. Malloy failed to file an
answer to BAPR's complaint in this proceeding and the referee granted
BAPR's motion for default judgment. The suspension was based upon
professional misconduct in the handling of four matters.
In the first matter, Malloy represented a client in a divorce
proceeding. The divorce was granted and Malloy was ordered to prepare
the findings of fact, conclusions of law and judgment of divorce. Malloy
submitted an inadequate document, and it was returned to him for
correction. One week later Malloy submitted another document that the
divorce court returned, indicating what specific corrections needed to
be made. Despite letters and phone calls from the divorce court, Malloy
did not submit another document for nine months. When he did, the
document was returned with specific instructions indicating what
corrections were needed.
Four months later Malloy submitted another document after the divorce
court had issued two orders to show cause as to why the proper documents
had not been filed. This document still was inadequate. Finally, the
family court commissioner made the necessary corrections and the judge
signed the order.
The supreme court concluded that Malloy's failure to file correct
final divorce papers for 18 months constituted failure to act with
reasonable diligence and promptness in representing a client, in
violation of SCR 20:1.3.
In the second matter, Malloy failed to appear in court on two
criminal matters with which his client was charged. He attempted to
return the $250 retainer when he tried to visit his client in prison,
but was unsuccessful because he failed to make the proper visitation
arrangements. Malloy subsequently sent a check to the client for the
retainer, but the client returned it because he was seeking payment in a
larger amount. The court concluded that Malloy's failure to appear in
court on behalf of his client constituted failure to act with reasonable
diligence, in violation of SCR 20:1.3, and his failure to return the
client's retainer violated SCR 20:1.16(d).
In the third matter, Malloy represented a client in a civil matter.
He did not respond to opposing counsel's request for admissions, second
set of interrogatories and a request to produce documents. He also
failed to respond to his client's inquiries about a court date and did
not inform his client of a deposition date. Instead, he telephoned
opposing counsel on the morning of the scheduled deposition and said he
could not participate because of an emergency. He did not tell his
client of the rescheduled deposition until the day preceding it. The
client incurred a $250 penalty for failure to comply timely with
discovery requests. The court concluded that Malloy failed to keep his
client reasonably informed of the status of a civil matter, in violation
of SCR 20:1.4(a).
In the fourth matter, Malloy was retained to obtain the return of a
car belonging to his client's brother that was seized when his client
was arrested. He failed to timely file the necessary documents, and the
car was not returned. Malloy also failed to respond to more than 20
attempts by his client to contact him. The supreme court concluded that
Malloy failed to act with reasonable diligence, in violation of SCR
20:1.3, and failed to reply to his client's reasonable requests for
information in violation of SCR 20:1.4.
In each of these four matters, Malloy failed to respond to BAPR's
requests for information and did not arrange to meet with BAPR to
discuss the matters. The court concluded that Malloy's failure to
respond to or arrange meetings with BAPR violated SCR 21.03(4) and SCR
22.07(2) and (3).
In determining that a 90-day suspension was the appropriate
discipline, the court considered Malloy's 1994 public reprimand and his
1997 one-year suspension. The court found significant that the
misconduct in three of the four matters occurred after a prior
disciplinary proceeding had been commenced, noting that despite the
pending proceeding, Malloy "continued to violate the Rules of
Professional Conduct for Attorneys in significant and substantial
degree."
In addition to the 90-day license suspension, the court ordered that
Malloy pay to BAPR the costs of the disciplinary proceeding.
Disciplinary proceeding against Thomas E. Warmington
The Wisconsin Supreme Court revoked the law license of Thomas E.
Warmington, 50, Brookfield, effective Oct. 1, 1997. Warmington's
revocation was based upon numerous counts of misconduct involving
several matters.
In one matter Warmington was retained to represent a woman on a claim
for damages. Warmington reached a $15,000 settlement, which was to be
paid by an initial payment of $10,100 and the remainder in $200 monthly
installments. Warmington received two cashier's checks totaling $10,100
payable to himself and the client on May 1, 1996. He endorsed his name
and the client's name on those checks without the client's authority.
After depositing the settlement funds into his trust account, Warmington
cashed numerous checks payable to himself or his law firm and within
days had insufficient funds in that account to cover the amount owed to
the client. By Aug. 12, 1996, only $8.24 remained of the $5,416.36 that
should have been on deposit for that client alone. In August 1996
Warmington told the client that she should have her money the following
week. Thereafter, Warmington did not return her numerous calls.
Warmington eventually returned the client's funds to her after the
client contacted BAPR.
By transferring the client's funds to his own use and endorsing her
name on checks without authority, Warmington engaged in conduct
involving dishonesty, fraud, deceit or misrepresentation, in violation
of SCR 20:8.4(c). By writing checks to himself and having insufficient
funds in his trust account to cover the client's portion of the
settlement, Warmington failed to hold in trust funds belonging to a
client, in violation of SCR 20:1.15(a). His failure to promptly deliver
to the client funds to which she was entitled violated SCR 20:1.15(b),
and his failure to respond to the client's calls and messages violated
SCR 20:1.4(a).
In a second matter Warmington was retained in March 1996 to represent
a woman in a divorce. His client was to receive $18,000 from the
refinancing of the couple's house. Warmington received a check for
$17,990 payable to the client only but asked the payor to make it
payable jointly. He then deposited the check into his trust account,
having endorsed on it his own name and that of the client, indicating
that he had her power of attorney. Between the end of August 1996 and
the end of the following October, Warmington wrote numerous checks
payable to his law firm from his client trust account. Six days after he
deposited the client's check, the balance of that account was
insufficient to cover the amount owed to her. Warmington further reduced
that balance to $11,750 by Oct. 2, 1996. Additionally, between Feb. 28
and March 6, 1996, Warmington's trust account was constantly
overdrawn.
By transferring to his own use funds belonging to the client,
Warmington engaged in conduct involving dishonesty, fraud, deceit or
misrepresentation, in violation of SCR 20:8.4(c). Warmington violated
SCR 20:1.15(b) by failing to promptly deliver to a client funds to which
she was entitled and failed to hold those funds in trust, contrary to
SCR 20:1.15(a).
When the client met with Warmington in September 1996, he told her he
should receive her check from the refinancing any day. In fact, he had
received the check a week earlier. By misrepresenting to the client that
the check was in the mail, Warmington violated SCR 20:8.4(c). Warmington
then failed to return eight telephone calls from the client, in
violation of SCR 20:1.4(a).
On Oct. 2, 1996, the client terminated Warmington's services and
retained new counsel. At that time, Warmington had not disbursed her
money. On Nov. 12, 1996, Warmington told the client's new attorney that
he was charging an additional fee of $1,312.50, offered to give the
client a check for $16,677.50, and said that they should accept the
offer that day, as the funds might not be available in the future.
Warmington then gave the client a cashier's check in that amount, but
the client claimed he was not entitled to the $1,312.50 he had deducted
in fees. By failing to hold the disputed funds in trust, Warmington
violated SCR 20:1.15(d).
After learning that successor counsel had been retained and without
permission to communicate directly with the client, Warmington
nonetheless faxed her a letter regarding the return of her funds, in
violation of SCR 20:4.2. Throughout the progress of this matter,
Warmington's wife was not an attorney in his service corporation but was
designated as such in the firm name and letterhead, in violation of SCR
20:7.5(a). Additionally, BAPR discovered that Warmington failed to
maintain complete trust account records, in violation of SCR
20:1.15(e).
In another matter, Warmington was retained by a woman in August 1996
to pursue a breach of contract case on behalf of her mother who was in a
nursing home. The woman paid a $7,500 advance on fees. Warmington
deposited the money into his client trust account and withdrew those
funds the same day. Not receiving a response to her numerous telephone
calls and faxes, and learning in late September that the receptionist at
his office had not seen him for weeks, the woman sent Warmington a
letter stating that if he was not able to handle the case, she wanted
the $7,500 returned. Warmington did not respond. The woman then filed a
grievance with BAPR and contacted the local police. Warmington informed
the officer who contacted him that he would be calling the woman the
following day, but did not.
In October 1996 the woman sent Warmington another letter demanding
return of her money and the file. Warmington did not respond. He
eventually telephoned the woman on Nov. 3, 1996, and said he was working
on the case, but the woman told him she was no longer interested in
dealing with him. The following day the woman sent another letter
demanding the return of the money and asserting that she had terminated
his services Oct. 9, 1996. It was not until Nov. 22, 1996, that
Warmington returned the $7,500, together with the file. Warmington's
failure to respond to the woman's calls and letters violated SCR
20:1.4(a). His failure to timely return an advance payment of his fee
that had not been earned and the client's file violated SCR
20:1.16(d).
Between July 1995 and November 1996, Warmington failed to keep
another client reasonably informed of the status of his legal matter and
promptly comply with reasonable requests for information, in violation
of SCR 20:1.4(a).
Another matter concerned Warmington's representation of a defendant
in a paternity action. He argued a meritless statute of limitations
defense at a hearing on a motion to dismiss, and he failed to supervise
the preparation of an expert witness to testify, which constituted
failure to provide competent representation, contrary to SCR 20:1.1. He
failed to diligently pursue a motion to amend the conceptive period and
failed to supervise cocounsel in collecting evidence required to support
the motion, in violation of SCR 20:1.3.
Finally, Warmington failed to respond to numerous letters and
telephone calls from BAPR staff regarding all of these matters. He also
did not appear for an investigative interview and did not produce his
client files, as directed by BAPR. After being personally served with a
notice of investigative interview, he ultimately appeared at the
interview but refused to give his statement under oath. Warmington's
failure to cooperate with BAPR's investigations into these matters
violated SCR 21.03(4) and 22.07(2).
In 1991 Warmington was publicly reprimanded for failing to
communicate with the clients who had retained him to pursue a medical
malpractice action, failing to inform them he had not timely filed their
legal action, misrepresenting that he had filed a malpractice action,
and failing to cooperate in BAPR's investigation of the matter.
Warmington also was publicly reprimanded in 1995 for failing to notify a
client of his receipt of the client's funds he had collected on the
client's behalf, failing to deliver the funds to the client for more
than two years, failing to communicate with the client and failing to
cooperate with BAPR's investigation.
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