Vol. 73, No. 5, May
2000
Lawyer Discipline - 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 attorneys.
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.
Public
Reprimand Summaries
Communication with Represented Party
without Consent of Attorney
Violation of SCR 20:4.2
In late 1998 a husband and wife each were charged with one felony
count of contributing to the delinquency of a child and one misdemeanor
count of contributing to the neglect of a child, based upon the couple's
failure to report their son as a runaway. The court appointed an
attorney to represent the wife; another attorney represented the
husband. The wife's preliminary hearing was held in early January, and
she was bound over for trial. Because the husband failed to respond to a
summons, his preliminary hearing was not held until March 24, 1999. The
couple's son was subpoenaed to testify at the hearing, and the wife
accompanied her son to the hearing. The wife was not subpoenaed. The
prosecutor noticed that the wife was present in the courtroom, and
called the wife to the witness stand. Despite the objections of the wife
and the husband's attorney, the judge allowed the prosecutor to examine
the wife, who was not given the opportunity to contact her attorney. The
prosecutor had corresponded with the wife's attorney and was aware at
the time that the wife was represented by counsel.
The Board of Attorneys Professional Responsibility (BAPR) concluded
that by questioning the wife under oath without consent of the wife's
attorney, and despite being aware that the wife was represented, the
prosecutor communicated about the subject matter of a representation
with a party that the prosecutor knew to be represented, without the
consent of the party's attorney, in violation of SCR
20:4.2. The prosecutor had no prior discipline.
False Statement of Fact to Tribunal
Violation SCR 20:3.3(a)(1)
A man's dog bit another man. The victim sought reimbursement from the
dog owner for his medical bills. The dog owner directed the victim to
his lawyer. The victim and the lawyer worked out a settlement. However,
before the dog owner paid the victim, a health care provider sued the
victim for its unpaid bill. The victim called the lawyer and told him
that he had "better take care of it," as the dog owner was responsible
for the medical bills.
In an effort to resolve the dispute, the lawyer filed a Notice of
Retainer and Answer in the lawsuit indicating that he was the attorney
for the victim. In fact, the lawyer never represented the victim and
never entered into an attorney-client relationship with the victim. The
lawyer knew he did not represent the victim when he filed the Notice of
Retainer and Answer indicating that he was the attorney for the
victim.
BAPR found clear and convincing evidence that, when indicating in the
pleadings that he was the attorney for the victim, the lawyer knowingly
made a false statement of fact to a tribunal, in violation of SCR
20:3.3(a)(1). The lawyer had twice previously been suspended, for 12
months and for 18 months.
Failure to Provide Competent Representation
Violation of SCR 20:1.1
The attorney represented a client on felony burglary charges. A trial
was scheduled for jury draw on Oct. 19, 1998, with trial on Oct. 20. On
Oct. 19 the defendant told the court, in part, that he did not believe
he had had sufficient time to discuss the case with his attorney. The
court directed the attorney to meet with the client that afternoon to
discuss a plea bargain offer, which was to expire at 3 p.m. The attorney
met with the client in jail between 2 and 3 p.m. The attorney then left
to speak with the prosecutor.
When the attorney returned to the jail a second time around 3 p.m.,
deputies noted that the attorney smelled of alcohol. When the attorney
was told he would have to provide a breath sample before he would be
permitted to enter the jail, the attorney consented. His breath tested
at .07% blood alcohol content, and jail staff denied him access to the
jail. The attorney met with the client later that evening without
incident.
The following day, the client informed the court of the previous
afternoon's events. The court allowed the client to discharge the
attorney and granted a continuance for the client to find new counsel.
Successor counsel was appointed, and the case went to trial in December
1998.
During BAPR's investigation, the attorney stated that he had consumed
beer with friends from 4 to 10 p.m. on Sunday, Oct. 18. The attorney
denied having consumed any alcoholic beverages between 10 p.m. Sunday
evening and the time he was rejected from the jail at 3 p.m. on Monday,
Oct. 19. A district professional responsibility committee concluded it
could not rule out the possibility that the attorney's blood alcohol
level on Monday was the result of excessive drinking the night
before.
BAPR concluded the attorney violated SCR
20:1.1, which requires a lawyer to employ the requisite preparation
reasonably necessary for competent representation. BAPR determined to
impose a private reprimand, with the condition that the attorney undergo
an AODA assessment by an agency approved by BAPR's administrator,
provide a copy of the assessment results to BAPR, and follow the
recommendations made in the assessment for one year.
Failure to Protect Client's Interests upon Withdrawal
Violation of SCR 20:1.16(d)
A man retained an attorney to pursue a personal injury claim against
an entity that owned an establishment in which the man was injured when
he fell over a railing on the establishment's second story level. The
statute of limitations was set to run in six months.
Approximately two weeks before the statute of limitations was to
expire, the attorney had a letter hand-delivered to the man that
indicated the attorney's firm had decided that it could not represent
the man and was withdrawing from the case. The letter also advised the
man that in order to preserve his claim, an action would have to be
filed before the statute of limitations expired and that the man could
come and pick up his file.
Approximately four days prior to the expiration of the statute of
limitations, the attorney prepared a summons and complaint and mailed
them to the man with a letter containing instructions for the man to
file the same with the Clerk of Courts before the expiration date.
BAPR determined that in failing to immediately notify the man of his
firm's conflict and in failing to withdraw until approximately two weeks
before the statute of limitations on the man's claim was to expire, the
attorney failed to give appropriate notice of withdrawal and failed to
take steps to the extent reasonably practicable to protect a client's
interests, in violation of SCR
20:1.16(d).
The attorney had no prior discipline.
Lack of Diligence; Failure to Communicate with Client and Cooperate
with Grievance Investigation
Violations of SCR 20:1.3, 20:1.4(a), 21.03(4),
and 22.07(2), and the Kennedy standard
An attorney represented a woman in a divorce granted in 1987. The
attorney was responsible for drafting a qualified domestic relations
order (QDRO), so as to effectuate the apportionment of the ex-husband's
retirement benefits with a particular employer. In violation of SCR
20:1.3, the attorney never drafted the QDRO, even after receiving
notice in June 1995 of the ex-husband's intention to begin drawing
retirement benefits. Successor counsel in Wisconsin completed the matter
in 1999. Prior to turning the case over to successor counsel, the client
had hired an attorney in the State of Oregon, where she moved subsequent
to the divorce, to assist her in bringing the matter to a close.
The disciplined attorney did not respond to status inquiries from the
client or Oregon counsel, in violation of SCR
20:1.4(a). The attorney received the client's grievance by May 9,
1998, at the latest, and was required to submit a written response to
BAPR within 20 days, but failed to submit a written response until March
17, 1999, contrary to SCR
21.03(4), 22.07(2),
and the standard of conduct announced in State vs. Kennedy, 20
Wis. 2d 513, 123 N.W.2d 449 (1963).
Dishonesty, Fraud, Deceit or Misrepresentation; Lack of
Diligence
Violation of SCR 20: 8.4(c) and SCR 20:1.3
An attorney who had been retained to probate an estate asked the
personal representative to back-date a check for attorney fees. The
attorney thereafter filed an inaccurate tax return on behalf of the
estate. BAPR determined that such conduct was contrary to SCR
20:8.4(c), which proscribes conduct involving misrepresentation.
Further, the attorney never filed an inventory in the estate and
contributed to unreasonable delays in obtaining a survey and an
appraisal of real estate belonging to the estate. BAPR determined that
the attorney violated SCR
20:1.3, which requires a lawyer to represent a client with
reasonable diligence and promptness.
Failure to Provide Competent Representation; Lack of Diligence
Violations of SCR 20:1.1 and 20:1.3
An attorney was hired to represent the estate of a decedent who died
testate in August 1993. The attorney failed to make inquiry to determine
whether medical assistance had been paid on the decedent's behalf, even
though the attorney knew the decedent had been in a nursing home before
his death. In effectuating the November 1997 transfer of the decedent's
real estate, the attorney failed to discover a medical assistance lien
on the property that was clearly of record. Further, prior to making
estate distributions, the attorney failed to comply with the statute
requiring that the Wisconsin Department of Health and Family Services
(DHFS) be provided with notice of the deadline for filing estate claims
whenever medical assistance has been paid on a decedent's behalf. BAPR
determined that in failing to discover that medical assistance had been
paid to the decedent and in failing to take the medical assistance
payments into account in handling transactions on behalf of the estate,
the attorney violated SCR
20:1.1.
The attorney was hired in October 1993 to probate the estate, but did
not commence probate until July 1995, and failed to close the estate
until November 1999, in violation of SCR
20:1.3. After transferring the decedent's real estate in November
1997 and making distributions to beneficiaries in February 1998, the
attorney received notice from DHFS of its $7,497.70 medical assistance
lien, followed by another notice in April 1998 that DHFS would accept,
in satisfaction of the lien, $4,285.63, which was the total net estate
after payment of expenses. The attorney did not promptly address the
matter of the outstanding lien, in violation of SCR
20:1.3. In March 1999 the attorney used his own funds to pay off the
lien.
Lack of Communication; Lack of Diligence
Violations of SCR 20:1.4(a),(b) and SCR 20:1.3
An attorney was appointed as appellate counsel for an incarcerated
client. The attorney reviewed the client's file and concluded there were
no appealable issues, but the attorney did not communicate his
conclusion to his client. The attorney also received a letter from the
client, but did not reply. The attorney never communicated with the
client during the seven months he represented him.
BAPR concluded that by failing to communicate in any manner with his
client or respond to a letter from him, the attorney violated SCR
20:1.4(a), which requires a lawyer to keep a client reasonably
informed about the status of a matter and to promptly comply with
reasonable requests for information. BAPR further found that by failing
to communicate to the client the conclusion that there were no
appealable issues in his case, the attorney violated SCR
20:1.4(b), which requires a lawyer to explain a matter to the extent
reasonably necessary to permit the client to make informed decisions
regarding the representation.
Finally, BAPR found that by failing to take any action after he
determined that the client's case presented no appealable issues, the
attorney violated SCR
20:1.3, which requires a lawyer to act with reasonable diligence and
promptness in representing a client. BAPR found that the attorney's
misconduct was mitigated by the lack of discernible harm to the client's
legal interests and by the fact that the attorney had no prior
disciplinary record.
Conduct Involving Deceit
Violation of SCR 20:8.4(c)
The attorney represented Mr. and Mrs. X, who were sued by a
development corporation to collect for work it had performed on the Xs'
real estate. The case was set for trial for mid-October 1998. A week
before trial, the attorney asked plaintiff's counsel to agree to
reschedule the trial to a date approximately six weeks after the initial
trial date, due to a scheduling conflict, but plaintiff's counsel
refused.
The attorney filed a motion for a continuance. During the hearing,
plaintiff's counsel told the court that to his knowledge, Mr. and Mrs. X
were continuing to attempt to sell their land. Plaintiff's counsel
argued that if the court granted a continuance, the plaintiff might be
prejudiced in the event that the Xs sold their land prior to the trial,
in that the potential lien that the plaintiff might receive through
docketing of a judgment would thereby be defeated.
In response, the attorney told the court that the purchase
negotiations did not work out, and the real estate had been taken off
the market. The attorney further stated that the property was not up for
sale; that it was being rented out and managed; and that it was not in
the Xs' future plans to sell the property. The attorney's request for a
continuance was denied, and the case went to trial. The court found in
favor of the plaintiff development corporation.
Subsequent to the trial, it was discovered that Mr. and Mrs. X had
sold their land to the attorney's daughter under a land contract
approximately one month before the October 1998 hearing on the
continuance. The land contract was not recorded until three days after
the hearing. Plaintiff's counsel alleged that the attorney had made
false statements to the court at the October hearing regarding the
status of the Xs' property.
BAPR found that the attorney violated SCR
20:8.4(c) for engaging in conduct involving deceit. BAPR voted for a
private reprimand, with the condition that the attorney complete 12
hours of CLE approved ethics seminars within 180 days. BAPR found that
the attorney's misconduct was aggravated by the attorney's failure to
take remedial measures to inform the court when the attorney learned
three days after the October 1998 hearing that the attorney's daughter
had purchased the property in question a month earlier.
Improper Use of Lis Pendens in Personal Injury Matter
Violations of SCR 20:3.1(a)(3)
An attorney represented the father of a man killed in a drunk driving
crash. The attorney filed a wrongful death action against the drunk
driver. One day later, the attorney filed a lis pendens under
the caption of the personal injury case against real property owned by
the defendant and the defendant's wife. The personal injury action had
no direct bearing on the title to the real estate that was the subject
of the lis pendens. The wrongful death case was settled within
three months, with the defendant's insurer tendering the policy limits.
Although the attorney executed a release of lis pendens upon
settlement of the case, the lis pendens was not released until
nearly two years later. The defendant and his wife were unable to obtain
a second mortgage on the property due to the existence of the lis
pendens.
BAPR concluded that the attorney should have known or it should have
been obvious to him that there was no basis for filing the lis
pendens in the context of the personal injury action. The filing of
the lis pendens, therefore, served merely to harass or
maliciously injure the defendant and his wife in violation of SCR
20:3.1(a)(3).
Offering False Evidence in Criminal Matter
Violations of SCR 20:3.3(a)(4)
In December 1999 BAPR privately reprimanded an attorney for violating
SCR
20:3.3(a)(4).
At a preliminary hearing the attorney, an assistant district attorney
(ADA), presented the testimony of a codefendant as a witness against the
defendant. On cross-examination by defense counsel, the witness was
asked if he had been offered any consideration in exchange for his
testimony. The ADA objected to the question, but the judge overruled the
objection. The question was then read back, and the witness responded
"no." In fact, the witness had entered into a cooperation agreement with
the ADA a month earlier. (The ADA agreed to charge the witness with a
misdemeanor and recommend probation in exchange for testimony against
the defendant.) When the witness testified falsely, the ADA failed to
take any remedial measures and allowed the testimony to stand, in
violation of SCR
20:3.3(a)(4). Two months after the preliminary hearing, defense
counsel learned of the cooperation agreement from the attorney for the
witness and was only provided a copy by the ADA upon specific request.
The attorney's status as a prosecutor, representing the public, was
considered an aggravating factor in the misconduct.
Conflict of Interest; Application of an Illinois Rule in Wisconsin
Disciplinary Matter
SCR 20:1.7(b) and 20:8.5(b)
Respondent, an attorney who practices in Illinois but also is
licensed in Wisconsin, represented a client in a worker's compensation
claim in Illinois and a related personal injury action in Wisconsin.
Respondent retained a Wisconsin attorney to assist with the personal
injury action, but continued to be involved in the case. The Wisconsin
attorney had no direct contact with the client, and it was Respondent
who prepared the answers to interrogatories and sent them to the
Wisconsin attorney for filing.
The Wisconsin case was dismissed because the answers to
interrogatories were not timely filed. Respondent undertook
representation of the client in a malpractice action against the
Wisconsin attorney. Even though the client gave his written consent to
the representation, BAPR concluded that Respondent did not fully
disclose the nature of the potential conflict and had an irreconcilable
conflict between his own personal interests as a potential defendant in
the malpractice action and his client's best interests. Pursuant to SCR
20:8.5(b) (the Choice of Law rule), the rule that was applied was
the Illinois equivalent of Wisconsin's SCR
20:1.7(b), which prohibits an attorney from representing a client if
the representation of that client may be materially limited by the
lawyer's own interests.
Neglect; Failure to Communicate
Violations of SCR 20:1.3 and 20:1.4(a)
The client, an Illinois resident, was injured in a slip and fall
accident while on a job in Wisconsin and hired an Illinois attorney to
represent him in both a worker's compensation case and a personal injury
action. The Illinois attorney referred the Wisconsin part of the action
to Respondent, but the Illinois attorney continued to have all contact
with the client and assisted Respondent with the Wisconsin case.
Respondent sent the defendant's interrogatories to the Illinois
attorney for the client's response, but Respondent failed to inform the
Illinois attorney that the court had issued an order compelling the
responses to be produced by a certain date. The responses were not
timely filed, and the lawsuit was dismissed. Respondent failed to notify
the client, through the Illinois attorney, that the case was dismissed
and also failed to disclose that Respondent had brought a motion to
reopen the case, which motion was denied when he failed to timely appear
for the hearing. The client did not learn about the dismissal until four
months later, after the Illinois attorney made several inquiries of
Respondent.
BAPR concluded that by failing to timely pursue the client's action,
resulting in dismissal of the action, the attorney failed to act with
reasonable diligence and promptness, contrary to SCR
20:1.3. Furthermore, by failing to timely inform the client that the
case was dismissed, the attorney also failed to keep a client reasonably
informed about the status of a matter, contrary to SCR
20:1.4(a).
Adverse Party Communication; Disobeying Court Order
Violations of SCR 20:3.4(c) and 20:4.2
A husband consulted with an attorney about representing him in a
divorce. Shortly thereafter, before the attorney had been formally
retained, the attorney went to the wife's home, knowing that she was
represented by counsel, to discuss a specific property division issue.
The contact was an adverse party communication prohibited under SCR
20:4.2.
The husband subsequently retained the attorney and, as security for
his legal fees, gave the attorney title to a truck that was marital
property. At a temporary hearing, the wife was thereafter awarded
exclusive use of the truck. The attorney nevertheless filed a lien on
the truck with the Department of Motor Vehicles. A court commissioner
subsequently ordered the attorney to vacate his lien, but the attorney
stated that his client refused to file a lien satisfaction and the lien
remained of record. BAPR concluded that the attorney could file the
satisfaction himself and that his failure to do so violated a court
order, contrary to SCR
20:3.4(c).
BAPR issued a private reprimand that was conditioned upon the
attorney releasing his lien on the truck, which he did.
Wisconsin Lawyer