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.
Lack of diligence; failure to protect client upon termination of
representation
Violations of SCR 20:1.3 and 20:1.16(d)
In January 1995 a man retained an attorney to pursue a dog bite case.
Other than writing to the adverse insurer in May 1995 and having a
paralegal inform the client in September 1996 that a demand for damages
would be prepared, the attorney failed to advance the client's case as
of the March 1997 termination of the attorney's representation, in
violation of SCR 20:1.3. The client terminated the attorney's
representation in March 1997 and, at that time, the attorney failed to
return the client's file to him as requested, in violation of SCR
20:1.16(d).
Signing another's name without knowledge or consent
Violation of SCR 20:8.4(c)
An attorney ran a home building business with the husband of
Complainant. This business was run out of a model home which the
attorney, Complainant, and her husband had invested in, but was titled
in the names of Complainant and her husband. In the summer of 1996,
Complainant began divorce proceedings and the decision was made to sell
the model home. On June 7, 1996, an offer to purchase the home was
received by the attorney, who then notified the husband of the offer.
The offer had to be accepted by June 10, 1996. On June 10 the attorney
met with the husband, who informed the attorney that he had been unable
to contact Complainant and she had not signed the offer. After some
discussion, the attorney signed Complainant's name on the offer to
purchase. The attorney did nothing to indicate that he was signing for
Complainant, nor did the attorney have power of attorney or express
authority of Complainant. At some point after June 10, 1996, Complainant
learned that the attorney had signed her name on the offer to purchase
and refused to proceed with the sale. At no time did Complainant give
the attorney or her husband permission to sign her name on the offer to
purchase.
BAPR found that by signing Complainant's name on the offer to
purchase without her knowledge or permission, and without any indication
that he was signing on behalf of the Complainant, the attorney engaged
in conduct involving dishonesty, misrepresentation, or deceit in
violation of SCR 20:8.4(c).
Practicing law while administratively suspended
Violation of SCR 20:5.5 (a)
An attorney's law license was suspended on June 3, 1997, for failure
to comply with the 1995-1996 Wisconsin mandatory continuing legal
education (CLE) requirements. The attorney became aware of his
suspension on June 6, 1997. On July 17, 1997, the attorney filed the
required fees and a petition for reinstatement with the Board of Bar
Examiners. After filing an amendment to this petition, the attorney was
found to be in compliance with the CLE make-up requirement and his law
license was reinstated on Aug. 7, 1997. During the suspension the
attorney appeared in court on behalf of clients on seven occasions, met
with clients, and performed legal research on behalf of clients. BAPR
found that by continuing to practice law while suspended, the attorney
violated SCR 20:5.5(a).
Revealing client confidences
Violation of SCR 20:1.6(a)
In the course of a criminal representation, the client confessed to
his attorney that he had committed the crime and within minutes
thereafter had what the attorney described as a "nervous breakdown." The
attorney transported the client to the emergency room, where the client
was hospitalized. At the hospital the attorney informed the client's
wife that he had confessed. That same day, the attorney arranged a
conference with the deputy district attorney and the presiding judge,
and told them that his client had confessed. The client subsequently
obtained other counsel and entered no contest pleas.
BAPR concluded that by revealing the client's confession to the
district attorney, the judge, and the client's wife without the client's
consent, the attorney violated SCR 20:1.6(a). In imposing this
discipline, BAPR considered the fact that the attorney had no prior
discipline and that at the time the attorney engaged in the misconduct,
he may have been traumatized by the client's nervous breakdown.
Neglect; failure to return file; failure to communicate basis of
fee
Violations of SCR 20:1.3, 20:1.16(d), and
20:1.5(b)
An attorney was appointed as GAL for Complainant's grandson, of whom
she had custody. At a June 4, 1996, hearing, the court ordered that the
child be returned to his mother and made several other provisions
regarding visitation, support, and continuation of the child's therapy.
The attorney was ordered to prepare the order for the court. At a
September hearing, the attorney was again ordered to prepare the order.
Another hearing was held in November 1996, and the attorney still had
not prepared the necessary documents. Attorneys for the parties had
provided the attorney with proposed drafts. The attorney did not submit
the proposed order until a Jan. 23, 1997, hearing. BAPR found that the
attorney's seven month delay constituted a violation of SCR 20:1.3.
In a separate matter, a client retained the attorney to represent her
at a deportation hearing. The attorney did not inform the client as to
whether he would be charging a flat fee or at an hourly rate.
Periodically, the attorney would simply request more money from her.
After several adjournments of her hearing, the client terminated the
attorney's services, retained a new attorney, and requested the return
of her file. BAPR found that the attorney failed to return the client's
file despite her requests, in violation of SCR 20:1.16(d), and failed to
communicate the rate or basis of his fee, in violation of SCR 20:1.5(b).
The attorney had no prior discipline.
Neglect, failure to communicate, failure to return unearned fee,
failure to properly supervise nonlawyer assistant, and failure to
cooperate
Violations of SCR 20:1.3, 20:1.4(a), 20:5.3(b), 21.03(4), and
22.07(2) and (3)
While a woman was incarcerated in an out-of-state federal prison, she
met an inmate who claimed that upon release the inmate would be working
for an attorney's law office and that the attorney could assist the
woman with both her criminal matter and a divorce. Sometime after the
inmate was released from prison, the woman received a draft of a letter
to the clerk of court regarding the filing of the divorce action. The
letter also contained a notation that the woman should send a $95 check
to the attorney's trust account.
The $95 was paid out of the woman's prison account to the attorney's
trust account. The woman heard nothing further from the attorney or his
office. The woman retained successor counsel, who wrote to the attorney
requesting the return of the money and the woman's files, but the
attorney failed to respond to those requests.
BAPR found that the attorney failed to act with reasonable diligence
and promptness in representing a client, contrary to SCR 20:1.3; failed
to adequately communicate with a client regarding the status of her
case, contrary to SCR 20:1.4(a); failed to properly supervise his
nonlawyer assistant, contrary to SCR 20:5.3(b) and (c); and failed to
cooperate with BAPR's investigation, contrary to SCR 21.03(4), and
22.07(2) and (3).
Violations of SCR 20:1.15(a) and (d)
In another matter, a man retained the attorney to defend him on a
motion for contempt and to pursue custody of the man's son. The man paid
the attorney a $3,000 retainer, which was deposited into the office
account at the attorney's firm. Three months later the man informed the
attorney that he no longer wanted the attorney to represent him and
requested an itemized billing statement. The statement disclosed that
the attorney had provided legal services and costs totaling $2,450. The
$550 balance remained in the attorney's office account and was not
returned to the man.
BAPR found that in failing to hold an advance payment of fees in a
trust account until such time as those fees were earned, the attorney
violated SCR 20:1.15 (a) and (d).
BAPR conditioned its offer of a private reprimand upon the attorney's
submission of a written outline of the steps he has taken to assure
proper supervision of his staff, including evidence of a regular tickler
system for every file in the attorney's office. BAPR also requested that
the attorney immediately return the $550 balance to the man and provide
evidence that the money had been returned. The attorney satisfied those
conditions. The attorney had no prior disciplinary history.
Representing driver and passenger in personal injury case
Violation of SCR 20:1.7(a)
In 1994 a woman was driving a vehicle in which her 20-month-old child
and her sister were passengers, and all allegedly sustained injuries as
the result of an accident. The child was in a booster seat but had not
been belted in by the mother, the driver. The next day, the driver
retained the attorney to represent her and the child, and the sister
also retained him. The attorney did not advise them of the potential for
conflicts of interest and did not have them sign written consents.
Counsel for the driver's insurance company advised the attorney that he
believed the attorney had a conflict, based on the apportioning of
liability, but the attorney continued to represent all three
clients.
In April 1995 the attorney filed actions on behalf of the sister and
the child naming the driver, his client, as one of the co-defendants. In
April 1997 the attorney obtained court approval of a minor settlement
for the child, to which the mother's insurer contributed. In July 1997
the mother was released by her doctor, and she asked the attorney to
proceed with her claim. The attorney told her he could no longer
represent her as there now was a conflict of interest because he could
not settle the sister's case, and he was proceeding to trial in the
action where she was named as a co-defendant. Apparently, the attorney
identified the conflict as developing only at the point he went to trial
against his client.
The attorney accepted representation of clients having adverse
interests in the same matter, without obtaining their written consent
after consultation, in violation of SCR 20:1.7(a).
Neglect
Violation of SCR 20:1.3
An attorney represented a client regarding federal drug charges. At
an Aug. 1, 1996, hearing, the court granted a request that the client be
allowed a contact visit with his family at the local jail. The attorney
was to submit an order for the judge's signature. On Sept. 11, the
client's mother wrote the court asking for the contact visit. The
court's clerk contacted the attorney on Sept. 12, again instructing him
to prepare a proposed order. On Oct. 18, the client's mother again wrote
the court as the attorney had not yet submitted an order. The client
also wrote the court to complain about the attorney. On Oct. 23, the
court ordered the attorney to respond to those concerns within five
days. The court drafted its own order that same day.
BAPR found that, by failing for two-and-a-half months to timely
prepare an order for the court allowing a contact visit between the
client and his family, the attorney violated SCR 20:1.3. Although the
attorney had two prior private reprimands, BAPR considered the
attorney's neglect to be de minimis and it did not affect the
substance of the criminal representation.
Misrepresentation in a real estate matter
Violation of SCR 20:8.4(c)
An attorney and a business partner, P, owned real estate-related
businesses and some vacant lots. After the attorney and P had a falling
out, a third party, X, made a verbal agreement with P to purchase P's
interests. While the verbal deal between P and X was pending, the
attorney and X sold one of the vacant lots to a home builder without P's
knowledge and without X having acquired any interest in the property.
The attorney drafted and signed numerous documents relating to the
vacant lot sale, including an owner's affidavit of title under oath for
a title insurance company and a warranty deed, all representing that the
attorney and X were owners of the vacant lot. The attorney and X did not
record the deed until after X and P closed their agreement. The attorney
did not tell P about the sale of the lot because the attorney thought it
would impede the impending transaction between P and X. After the
closing of the vacant lot sale, the builder began constructing a home on
the lot. The builder, who had dealt personally only with X, did not know
that X was not an owner at the time of the closing.
The attorney violated SCR 20:8.4(c), which prohibits conduct
involving dishonesty, fraud, deceit, or misrepresentation. The purchaser
could have suffered significant harm because if the agreement between P
and X had not closed, the purchaser would have been left with a house he
could not sell because he did not have good title to the real estate.
While the attorney's intentional misrepresentation under oath in
executing the owner's affidavit for the title insurance company was, in
particular, a serious matter, the attorney's misconduct was mitigated by
the lack of tangible harm and by the attorney's lack of any prior
discipline.
Failure to provide advance notice of fee, failure to return unearned
portion of retainer, failure to cooperate with investigation
Violations of SCR 20:1.5(b), 20:1.16(d), and
21.03(4)
An attorney provided post-conviction, criminal defense representation
to a man. The man's girlfriend delivered a cash retainer. The attorney,
in violation of SCR 20:1.5(b), failed to provide the client or the
client's girlfriend with advance notice of a $20.99 "one time charge to
cover set-up, maintenance and storage of files and data." The attorney
claimed the entire retainer fee, but because he billed for the $20.99
"one time charge" and for certain telephone calls occurring subsequent
to the termination of representation, a portion of the retainer was
unearned, and by failing to return the unearned portion of the retainer
the attorney violated SCR 20:1.16(d). The attorney offered to return the
entire retainer on the condition that the client and girlfriend
"withdraw" a grievance filed against him with BAPR, in violation of SCR
21.03(4), which requires attorneys to cooperate with BAPR
investigations. The attorney engaged in a separate violation of SCR
21.03(4) when he misrepresented to a district committee investigator the
extent of his involvement in seeking to have the client and girlfriend
withdraw the grievance and execute a release.
Conflicts of interest as government lawyer
Violations of SCR 20:1.7(b)
From 1988 through October 1996 an attorney was employed as
corporation counsel for a Wisconsin county. In 1983 a wealthy woman
gifted a parcel of land to the county. In 1992 the county abandoned its
efforts to obtain a deed from the woman. The woman died in 1993, and her
will provided that the parcel, an unbuildable lot, was to be sold. In
May 1996 the personal representative of the woman's estate made an offer
to the attorney to donate the parcel to the county. The personal
representative subsequently agreed to sell for $300 the parcel to the
attorney who had previously expressed an interest in it. The attorney
failed to obtain a written waiver from the county before purchasing the
parcel in September 1996, in violation of SCR 20:1.7(b).
In 1993 the attorney represented the county in a foreclosure action
of tax liens on various parcels of property, including six particular
lots. The six lots were appraised at a total of $9,000. Subsequent to
the judgment in the foreclosure action, the county treasurer advertised
the lots for sale at the appraised amount. The treasurer received no
offers and the properties were readvertised. The attorney inquired of
the County Board Finance Committee if he could submit a sealed bid on
tax delinquent properties. The committee orally informed the attorney
that he could bid, but should follow standard bid procedures. The
attorney submitted a sealed bid for $5,052 for the six lots. The only
other bid was from a local real estate appraiser who bid $300 for the
six lots. The attorney was not advised of the other bid until the bids
were opened. In August 1993 the Finance Committee awarded the attorney
all six lots for $5,052. The attorney's failure to obtain a written
waiver from the county constituted a violation of SCR 20:1.7(b). The
attorney had no prior discipline.
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