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.
Hearing to reinstate
Larry J. Barbar
A public hearing on the petition of Larry J. Barber to reinstate his
law license will be held before the District 2 Professional
Responsibility Committee on Feb. 17, 1998, at 6 p.m. in the Grain
Exchange Room of the Mackie Building, 225 E. Michigan St., Milwaukee,
Wis.
The Wisconsin Supreme Court suspended Barber's license for six months
effective Aug. 7, 1995, as discipline for professional misconduct. That
misconduct consisted of Barber having failed to act with reasonable
diligence and promptness on behalf of two clients in two divorce
proceedings and to respond to his clients' requests for information
regarding those matters. Barber is required by Supreme Court Rule 22.28
to establish by clear and convincing evidence, that:
- he desires to have his license reinstated;
- he has not practiced law during the suspension;
- he has complied with the terms of the disciplinary order;
- he has maintained competence and learning in the law;
- his conduct since the discipline has been exemplary and above
reproach;
- he has a proper understanding of and attitude toward the standards
that are imposed upon members of the bar and will act in conformity with
them;
- he can safely be recommended to the legal profession, the courts and
the public as a person fit to be consulted by others and to represent
them and otherwise act in matters of trust and confidence, and in
general to aid in the administration of justice as a member of the bar
and as an officer of the court;
- he has made restitution or settled all claims from persons injured
or harmed by his misconduct, or in the event such restitution is not
complete, his explanation of the failure or inability to do so;
- he has indicated the proposed use of the license after
reinstatement; and
- he has fully described all business activities during the period of
suspension.
Any interested person may appear at the hearing and be heard in
support of or in opposition to the petition for reinstatement. Further
information may be obtained from Jeananne L. Danner, Deputy
Administrator, Board of Attorneys Professional Responsibility (BAPR),
611 N. Broadway, Suite 102, Milwaukee, WI 53202; (414) 227-4623.
Disciplinary proceeding
against James C. Cotter
The Wisconsin Supreme Court suspended the law license of James C.
Cotter, 49, Brown Deer, for one year, effective Nov. 4, 1997, pursuant
to a stipulation of the parties. Cotter also was ordered to pay the cost
of the disciplinary proceedings.
Cotter was arrested on three outstanding warrants for operating a
vehicle after license revocation and disorderly conduct and on a bench
warrant for failure to appear in a divorce matter. When arrested, Cotter
possessed an operator's license in another person's name but with
Cotter's picture on it, and two credit cards in the name of that person.
The police also recovered an application for a duplicate of the
operator's license issued in the name of that person. The person whose
name appeared on the operator's license, the license application and the
credit cards had not given anyone his permission to apply for a
duplicate license. Cotter was charged with one count of misdemeanor
forgery, which later was amended to a criminal violation of the Motor
Vehicle Code - using a false name on a license application. Cotter was
convicted on a guilty plea and fined $750.
The court found that Cotter's preparing, signing and presenting
documentation containing false information in an application for a
duplicate operator's license constituted a criminal act that reflects
adversely on his honesty, trustworthiness or fitness as a lawyer, in
violation of SCR 20:8.4(b).
In 1992 the court suspended Cotter's law license for two years for
personally retaining legal fees while an employee of a law office,
failing to prepare and timely file personal income tax returns for five
years, failing to refund a client's unearned fee and respond to her
telephone calls, failing to timely file a brief in a criminal appeal and
to communicate with the court following its notification that he do so,
and failing to cooperate with BAPR's investigation into the appellate
matter.
Reinstatement of
Donald S. Eisenberg
A public hearing on the petition of Donald S. Eisenberg for
reinstatement of his law license will be held before BAPR District 9
Committee on Tuesday, Jan. 20, 1998, at 7 p.m. in the Assembly Hall of
the State Bar of Wisconsin, 402 W. Wilson St., Madison, Wis.
Eisenberg became licensed to practice law in 1956 and practiced in
Madison. Eisenberg's law license was revoked effective Nov. 1,
1989.1 Prior to his revocation, Eisenberg
had been the subject of several other disciplinary proceedings. He was
publicly reprimanded in 1965,2 and in 1984
the court suspended his law license for six months.3
In 1985 Eisenberg twice was denied reinstatement of his law license
because he had continued to practice law while his license was
suspended.4 A third petition for
reinstatement was withdrawn. A fourth reinstatement petition was stayed
until disposition of the 1989 disciplinary proceeding. That petition was
dismissed as moot following the revocation. In 1996 the Wisconsin
Supreme Court denied a fifth reinstatement petition on two grounds:
Eisenberg's statement on a television program in 1990 of his belief in
the guilt of a former client and his failure to repay a fee to a former
client whom he had represented in the presence of a conflict of
interest.5
Eisenberg's law license was revoked based on evidence that he
repeatedly misused his trust account. On Feb. 10, 1981, Eisenberg's
trust account ledger showed a receipt of $2,000 on behalf of a named
client. No such deposit was made. On the day the deposit allegedly was
made, Eisenberg drew a $2,000 check payable to himself on the trust
account. By doing so, Eisenberg made a payment to himself on behalf of
one client from funds on deposit in his trust account belonging to other
clients.
In May 1981 Eisenberg drew a $20,000 check on his client trust
account payable to his uncle. He concealed the transaction by marking
the check stub "void" and not recording the check on the trust account
ledger or subtracting it from the balance on that ledger. When that
check was written, the uncle had no money on deposit in the trust
account. Eisenberg testified that he was lending his uncle the money.
Later that month, Eisenberg deposited $20,000 into the trust account on
behalf of his uncle. This transaction also was not recorded on the
account ledger.
Later that month, Eisenberg made another $20,000 loan to his uncle by
this means. He did so again in June 1981 in the amount of $5,000. In the
latter case, Eisenberg concealed the transaction by writing on the check
stub a different payee and amount than that of the actual check.
On Aug. 21, 1981, Eisenberg deposited $10,000 into the firm's trust
account and listed it in the receipt book, general trust account ledger
and individual trust account ledgers as attributable to another named
client of the firm. Those funds were withdrawn immediately from the
trust account and used to conclude a bank transaction known as a
repurchase agreement. Subsequently, Eisenberg made disbursements from
his trust account of about $7,300 for the named client, although that
client had no funds on deposit in the trust account.
There were insufficient funds in that account to pay for the above
disbursements. Later in August 1981 Eisenberg wrote a $10,000 trust
account check payable to another attorney who also was representing the
named client, but that withdrawal was not recorded on the trust account
ledger. There were insufficient funds in the trust account to cover the
check.
On Sept. 3, 1981, the trust account receipts ledger showed a $15,000
entry on behalf of one of Eisenberg's partners. Five days later, $15,000
was transferred from that account to another account, on which Eisenberg
then drew a $15,000 check payable to his uncle.
During 1981 Eisenberg withdrew funds from his firm's trust account
for his personal use four times, totalling $58,000. When these
withdrawals were made, Eisenberg had no personal funds on deposit in the
trust account. He did not record the transactions and subsequently
admitted that he was illegally borrowing money from the trust
account.
During 1981 Eisenberg deposited about $954,000 into the firm trust
account without recording the deposit amounts on the account ledger or
indicating on whose behalf they were made. He also caused almost $70,000
to be recorded in the account ledger as deposits when no such deposits
had been made. Also in 1981, Eisenberg withdrew about $930,000 from the
trust account without reporting those withdrawals on the account ledger
or identifying the clients on whose behalf they were made.
Based on these facts, the Wisconsin Supreme Court concluded:
Eisenberg violated SCR 11.05(1) by commingling funds in his client trust
account and by using the funds of other clients to pay the debts of a
client; he violated SCR 11.05(2) by failing to maintain and preserve
complete records of client funds coming into his possession; and he
violated SCR 20.04(4) by engaging in conduct involving dishonesty,
fraud, deceit or misrepresentation by attempting to conceal these
transactions.
The court stated that regardless of his prior discipline for
professional misconduct, the seriousness of his misuse of a client trust
account and conversion of client funds warranted the revocation of
Eisenberg's law license.
SCR 22.28 requires Eisenberg to show:
- he desires to have his license reinstated;
- he has not practiced law during the revocation;
- he has complied fully with the terms of the order and will continue
to comply with them until his license is reinstated;
- he has maintained competence and learning in the law;
- his conduct since the revocation has been exemplary and above
reproach;
- he has a proper understanding of and attitude toward the standards
that are imposed upon members of the bar and will act in conformity with
them;
- he can safely be recommended to the legal profession, the courts and
the public as a person fit to be consulted by others and to represent
them and otherwise act in matters of trust and confidence and in general
to aid in the administration of justice as a member of the bar and as an
officer of the court;
- he has fully complied with the requirements of SCR 22.26;
- he indicates the proposed use of his license, if reinstated;
- he has fully described all business activities during the
revocation; and
- he has made restitution or settled all claims from persons injured
or harmed by his misconduct or, if the restitution is not complete, his
explanation of his failure or inability to do so.
Eisenberg must demonstrate by clear and convincing evidence that he
possesses the moral character to practice law in this state and that his
resuming the practice of law will not be detrimental to the integrity
and standing of the bar or the administration of justice, or subversive
of the public interest.
Any interested person may appear at the hearing and be heard in
support of or in opposition to the petition for reinstatement. Further
information may be obtained from Mary A. Ahlstrom, Board of Attorneys
Professional Responsibility, 110 E. Main St., Room 410, Madison, WI
53703-3383; (608) 267-7274.
Disciplinary proceeding
against John W. Gibson
On Nov. 4, 1997, the Wisconsin Supreme Court suspended the law
license of John W. Gibson, 65, Madison, for 60 days, effective Dec. 8,
1997. Gibson stipulated with BAPR that the pleadings set forth a
sufficient basis for discipline and that a 60-day suspension was an
appropriate sanction. The supreme court adopted the facts and
conclusions as stipulated by the parties.
While administratively suspended for nonpayment of State Bar dues,
Gibson appeared in court on behalf of clients and practiced law,
contrary to SCR 10.03(4) and (6) and 20:8.4(f).
While representing a tenant in an eviction proceeding, Gibson, in
violation of SCR 20:4.1(a) and 20:8.4(c), misrepresented to the landlord
that he had filed a bankruptcy petition on the tenant's behalf, causing
the landlord to cancel the eviction proceeding and instruct his counsel
to pursue the matter in the bankruptcy proceeding. The landlord learned
that no petition had been filed and had counsel contact Gibson, who then
filed a petition.
In another bankruptcy, Gibson signed pleadings affirming that, after
reasonable inquiry, they were well-grounded in fact and not interposed
for any improper purpose. Gibson, however, had delegated the decision of
whether and when to file those pleadings to a nonlawyer employee, whom
he failed to properly supervise. Gibson or his staff had the client sign
blank petitions, plans and schedules that were later filled in by Gibson
or his staff, and the petition was filed while Gibson was on vacation.
Gibson and his staff failed to timely file a repayment plan and complete
schedules. The court deemed frivolous his subsequent opposition to a
motion by the bankruptcy trustee to dismiss the bankruptcy petition.
In another bankruptcy, Gibson allowed his nonlawyer employee to
decide to file a petition on behalf of a client, which was done without
the inclusion of a repayment plan or the necessary schedules. Gibson or
his staff had the client sign blank petitions, plans and schedules,
notwithstanding bankruptcy rules specifying that the signature of a
party certifies that the party has read the document and that it is
well-grounded in fact. A repayment plan was not timely filed, and the
bankruptcy court ruled that Gibson's objection to the bankruptcy
trustee's motion to dismiss was frivolous.
Gibson's conduct in the latter two matters violated SCR 20:5.3(b) and
(c), which pertain to supervision of nonlawyer assistants. Gibson's
nonmeritorious opposition of the trustee's dismissal motions violated
SCR 20:3.1(a)(1) and (2). Gibson was found to have violated SCR 20:1.1,
which requires competent representation. In completing documents already
signed by clients, Gibson was found to have violated SCR 20:8.4(c).
Gibson's license was suspended for 90 days in 1985 for misconduct
unlike that in the present case.
Public reprimand of
John M. Langer
On Oct. 21, 1997, the Wisconsin Supreme Court imposed a public
reprimand upon the law license of John M. Langer, 66, Baraboo. The court
also ordered that Langer be personally responsible for any tax-related
liabilities incurred by his client, an estate, which resulted from his
misconduct; and further ordered that Langer pay the costs of the
proceeding.
Langer was retained in 1991 to probate an estate. After a farm was
sold and some distributions were made in 1993, Langer wrote to the
personal representative that he should be in a position to close the
estate shortly. The estate was not concluded, which led to a 1995
meeting between Langer and the personal representative; Langer said the
final papers would be ready and mailed within several days. Ultimately,
the personal representative filed a grievance with BAPR in connection
with the nonclosure of the estate.
Langer was unresponsive to BAPR inquiries in 1995 and early 1996. The
probate court issued several separate orders to show cause during 1996,
at which Langer indicated he was having secretarial problems and that he
anticipated to promptly close the estate. Meanwhile, BAPR maintained its
efforts toward Langer's closure of the estate. When the disciplinary
complaint was filed, however, more than five and a half years after the
decedent's death, the estate remained open.
The court adopted the referee's conclusion that Langer's failure to
complete the probate of the estate and his neglect of it from October
1993 to October 1997 constituted a failure to act with reasonable
diligence and promptness in representing a client, in violation of SCR
20:1.3; and that Langer's failure to respond to BAPR inquiries and
furnish any responsive information or materials and to respond to the
district committee investigator constituted a failure to cooperate with
BAPR's investigation, in violation of SCR 21.03(4) and 22.07(2) and
(3).
Langer previously had received a private reprimand in 1992 for
failing to cooperate with a BAPR investigation.
Disciplinary proceeding
against Patrick B. Sheehan
On Oct. 20, 1997, the Wisconsin Supreme Court granted BAPR's motion
to temporarily suspend the law license of Patrick B. Sheehan, 55,
Beloit, pending the outcome of the disciplinary proceeding pending
against him. In June 1997 BAPR filed the motion for temporary suspension
contemporaneously with a complaint that alleges Sheehan fraudulently
induced a client to pay him $8,000 as a partial commission for having
found a buyer for the client's business and improperly handled that
client's funds, used another client's funds placed in his trust account
for paying state and federal corporate and personal income taxes and a
professional's fee to make payments to himself and to other clients, and
disbursed a portion of another client's personal injury settlement to
other clients and himself. Additionally, BAPR asserted that Sheehan had
failed to keep complete records of his trust accounts and the property
of clients in those accounts.
Sheehan filed an affidavit opposing the motion for temporary
suspension in which he did not address the allegations of the misuse of
client funds held in trust but merely asserted that he had paid the
clients the funds to which he believed they were entitled. Sheehan has
no prior discipline record.
Endnotes
1Disciplinary Proceeding
Against Eisenberg, 152 Wis. 2d 91, 447 N.W.2d 54 (1989).
2State v. Eisenberg, 29
Wis. 2d 233, 138 N.W.2d 235 (1965).
3Disciplinary Proceeding
Against Eisenberg, 117 Wis. 2d 332, 344 N.W.2d 169 (1984).
4Disciplinary Proceeding
Against Eisenberg, 122 Wis. 2d 627, 363 N.W.2d 430(1985); 126 Wis.
2d 435, 377 N.W.2d 160 (1985).
5Disciplinary Proceeding
Against Eisenberg, 206 Wis. 2d 263, 556 N.W.2d 749(1996).
Wisconsin Lawyer