Vol. 71, No. 11, November 1998
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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