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Private
Reprimand Summaries
The
Wisconsin Supreme Court permits the Office
of Lawyer Regulation (OLR) to publish, for educational purposes, in
an official State Bar publication a summary of facts and professional conduct
rule violations in matters in which OLR imposed private reprimands. The
summaries do not disclose information identifying the reprimanded attorneys.
The following summaries of selected private reprimands, imposed by OLR,
are printed to help attorneys avoid similar misconduct problems. Some of
the summaries may indicate violations of the rules that were in effect prior
to Jan. 1, 1988. The current rules proscribe the same types of misconduct.
Under the new rules of lawyer regulation, a court-appointed referee will
impose private reprimands with consent of the attorney. See SCR 22.09 (2000).
Deducting Attorney Fees from
Client Trust Account Without Client's Consent; Unreasonable Fee
Violations of SCR 20:1.15(d) and 20:1.5(a)
A woman hired an attorney to represent her in a divorce. The client lived
in Illinois. To facilitate communication with the client, it was agreed
that the attorney would copy a friend of the client, an Illinois attorney,
on any correspondence to the client. The Illinois attorney took an active
role in the case.
The final hearing was held in April 1997. The court denied maintenance
to the attorney's client and held the issue open for three years. The
attorney filed a motion to modify the maintenance order. The court ordered
the parties to submit briefs. The brief was written by the Illinois attorney.
In mid-December 1997, the court denied the Wisconsin attorney's motion.
In March 1998, the client fired the attorney and hired successor counsel.
The parties had sold a residence and placed the proceeds in a money
market account. In mid-May 1997, the parties agreed to divide the proceeds
of $12,500 equally. Three days later, the attorney received the proceeds
and sent one-half of them to adverse counsel, leaving a balance of more
than $6,200. Also on that day, the attorney wrote to his client, stating
that he was confirming their telephone conversation of May 16, in which
she had authorized him to deduct his fees and expenses from her share
of the proceeds and to disburse the balance to her. The attorney asked
the client to call him immediately to discuss her response. The attorney
deducted more than $2,300 for his fees and expenses from the client's
proceeds, leaving a trust account balance of more than $3,900. The attorney
sent his client a check for more than $1,600, leaving a balance of $2,200.
The client replied by letter, demanding her entire share of the proceeds,
with no deductions. The attorney sent his client the trust account balance
of $2,200, but the attorney did not return the sum that he had deducted
for fees. The client denied having a telephone conversation with the attorney
on May 16, 1997, or ever discussing deducting attorney fees from the proceeds.
By deducting his fees from the trust account without his client's consent,
the attorney violated SCR 20:1.15(d).
In August 1997, the parties sold a farm and deposited the proceeds into
a bank, pending further court action. The Illinois attorney, on the client's
behalf, told the attorney that the attorney had no authorization to retain
any of the farm proceeds for attorney fees. In early March 1998, a court
ordered that the farm proceeds be disbursed. Two weeks later, the client,
through the Illinois attorney, terminated the attorney's representation.
On March 31, 1998, the bank disbursed the client's net share of the farm
proceeds, more than $4,900, by check payable to the attorney's trust account
for the client. (The attorney was still counsel of record.) Also on March
31, the attorney signed a stipulation/order for substitution of attorney
of record.
In early April 1998, successor counsel demanded the $4,900 in the trust
account. The attorney replied by sending the client a check for $105 and
claiming a lien on the remainder of the trust account funds.
The attorney sued the client for attorney fees. After a trial, the court
awarded the attorney a judgment, including costs, of almost $4,500. The
court disallowed almost $700 of the fees requested by the attorney. In
disallowing those fees, the court determined that the attorney had billed
his client for more than seven hours of paralegal time at the attorney's
hourly rate of $95 for formatting and typing the brief on the motion for
maintenance that had been written by the Illinois attorney. By billing
the client for more than seven hours of paralegal time at the attorney's
rate of $95 per hour, the attorney charged an unreasonable fee, contrary
to SCR 20:1.5(a).
Knowingly Disobeying an
Obligation Under the Rules of a Tribunal
Violation of SCR 20:3.4(c)
On June 19, 1998, an attorney was appointed by the State Public Defender's
office to represent a client on appeal from a criminal conviction. On
March 8, 1999, the attorney filed a Notice of Appeal - No Merit with the
trial court. Over the next several months, the attorney failed to respond
to several letters from the clerk and orders to show cause from the court
of appeals, demanding to know why the attorney had failed to file the
no-merit brief. Eventually, after the imposition of a $1,425 forfeiture
and a brief suspension from practice before the court of appeals, the
attorney filed the brief on Nov. 3, 1999.
After proceedings before a referee, the Wisconsin Supreme Court concluded
that, by failing to respond to numerous orders of the court of appeals
over seven months, the attorney knowingly disobeyed an obligation under
the rules of a tribunal, in violation of SCR 20:3.4(c). The attorney had
no prior discipline.
Incompetence, Failure to
Consult and Communicate With Client, Lack of Diligence, Lack of Supervision
Over Nonlawyer Employee
Violations of SCR 20:1.1, 20:1.2(a), 20:1.3, 20:1.4(a), and 20:5.3(b)
A lawyer represented the petitioner in a divorce. The lawyer's level
of preparation for the final divorce hearing, particularly with respect
to gathering and presenting relevant evidence, was deficient to the point
that he failed to provide competent representation, in violation of SCR
20:1.1. After agreeing to a post-trial briefing schedule, the lawyer violated
SCR 20:1.2(a) by failing to engage in any consultation with the client
as to possible arguments to advance in the brief. The lawyer did not file
a brief, contrary to SCR 20:1.3, which requires reasonable diligence and
promptness in representing a client. The lawyer did not inform his client
that he had not filed a brief, in violation of SCR 20:1.4(a).
The lawyer stated that in the period covering his representation of
the client, he suffered generally from a lack of case file organization,
which he attributed, in part, to a secretary in his employ. The lawyer
acknowledged that he did not properly manage the secretary. By failing
to provide adequate oversight to his nonlawyer employee, the lawyer violated
SCR 20:5.3(b).
Improper Termination of
Representation
Violations of SCR 20:1.16(a) and (d)
In late February 2000, a man hired an attorney to defend him in two lawsuits.
Both plaintiffs claimed that the man, at separate times, had sold them
his business and had subsequently violated the terms of the purchase agreements
by continuing to market products in competition with the plaintiff. A
temporary injunction was sought against the man.
The attorney agreed to represent the man in both matters. The retainer
fee covered the representation up to 30 days before any trial. The attorney
filed answers with counterclaims in both matters. The court granted the
request for an injunction.
In June 2000, the attorney agreed to a date in August 2000 for taking
the parties' depositions. The attorney promptly wrote to the client and
informed him of the time and location of his deposition. The client fired
the attorney in late July 2000. The attorney did not take action to reschedule
the deposition or move to withdraw from the pending matters, contrary
to SCR 20:1.16(d), which states, in part, that upon termination of representation,
a lawyer shall take steps to the extent reasonably practicable to protect
a client's interest, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering papers and property
to which the client is entitled, and refunding any advance payment of
fee that has not been earned.
The client failed to appear for his deposition in August 2000, and adverse
counsel moved for sanctions. In early September 2000, the court held a
hearing attended by the client, appearing pro se, and adverse counsel.
The client informed the court that the attorney was no longer representing
him. The court instructed its staff to contact the attorney and direct
him to submit a motion to withdraw to the court. The court file contains
notations indicating that court staff subsequently left a message with
the attorney's secretary regarding the directive that the attorney submit
a motion to withdraw. The attorney, however, never submitted a motion
to withdraw, contrary to SCR 20:1.16(a)(3), which states, in part, that
a lawyer shall not represent a client or where representation has commenced,
shall withdraw from the representation of a client, if the lawyer is discharged.
The court's staff ultimately removed the attorney as being the attorney
of record while preparing a notice of hearing for the case. The attorney
complied with requests from the client for his file and a partial refund
of the retainer fee.
The attorney previously received a public reprimand, in part, for neglect
of a matter.
Incompetent Representation
and Misrepresentations to a Court
Violations of SCR 20:1.1, 20:3.3(a)(1), and 20:8.4(c)
An attorney appeared on behalf of a juvenile defendant at a delinquency
pre-trial and sanctions hearing. At the outset of the proceeding, the
observations of a social worker and the court concerning the attorney's
possible intoxication were placed on the record. The attorney answered
in the negative when asked by the court if he had consumed alcohol within
the past 12 hours. The attorney again answered in the negative when asked
if he was under the influence of alcohol consumed more than 12 hours prior
to the hearing, which commenced at approximately 11:15 a.m. The attorney's
answers to the court concerning his alcohol consumption were false, and
they were made with knowledge of their falsity.
The court allowed the attorney's appearance, but at the close of the
proceeding, the court called for bailiffs to administer a breath-alcohol
test to the attorney. The attorney told the bailiffs he knew what the
result would be and that he was ashamed. The attorney tested positive
for alcohol, indicating a .08 percent blood-alcohol level. The court then
removed the attorney as counsel for the juvenile defendant and vacated
all proceedings that had occurred that day.
By appearing on behalf of a client while impaired by alcohol, the attorney
violated SCR 20:1.1, which requires an attorney to provide competent representation.
By knowingly providing the court with false answers concerning the extent
of his alcohol consumption, the attorney violated SCR 20:3.3(a)(1) and
20:8.4(c).
Unreasonable Fee and Failure
to Communicate the Basis or Rate of Fee
Violations of SCR 20:1.5(a) and 20:1.5(b)
In February 1998, a woman paid an attorney a $2,000 retainer to initiate
divorce proceedings against her husband. The fee agreement provided that
the attorney's fees would be based on an hourly rate of $200 and an "ultimate
fee," to be determined at the completion of the action, based on the combination
of the factors listed in SCR 20:1.5(a). The agreement did not indicate
how those factors would lead to determination of the ultimate fee. The
agreement also provided that semi-monthly billing statements would be
sent to the woman. In January 1999, a settlement was reached the day before
the trial date was scheduled.
From February 1998 through October 1998, the woman received nine invoices,
which included an itemization of the services provided and the charges
for each service. In October 1998, the attorney fees charged by the attorney
totaled approximately $16,000. In February 1999, the woman received a
final bill in the amount of approximately $43,000 for services rendered
for the period from November 1998 through February 1999. This final bill
did not include an itemization of services or charges.
Sometime after receiving the final bill, the woman questioned the attorney
about the amount of the bill, and the attorney indicated that he had added
to his attorney fees an extra $25,000 as a "bonus." The woman filed an
application for fee arbitration with the State Bar of Wisconsin, having
paid the attorney approximately $34,000.
The attorney indicated that, in determining his "ultimate fee" of approximately
$25,000, he took into consideration the amount and the character of the
services rendered; the complexity of the case; the expertise required;
the amount of money and property involved; his professional skill, experience,
and standing in the legal community; and the benefits derived by the woman.
The Fee Arbitration Panel found, among other things, that the "ultimate
fee" was ambiguously defined in the fee agreement and was likely to have
resulted in substantial confusion for the woman; the amount of the "ultimate
fee" was unreasonable; the attorney did not provide semi-monthly bills
to the woman as required by the fee agreement; and the reasonable attorney
fees were approximately $39,000, instead of the $59,000 in attorney fees
that the attorney had billed the woman.
By attempting to charge the woman an additional fee of approximately
$25,000, the attorney charged an unreasonable fee, in violation of SCR
20:1.5(a). By not adequately explaining the terms of the fee agreement
to the woman within a reasonable time of commencing the representation,
the attorney failed to communicate the basis or rate of his fee in violation
of SCR 20:1.5(b).
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