Wisconsin Lawyer: Wisconsin Lawyer June 1999: Lawyer Discipline:

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June 01, 1999

Wisconsin Lawyer June 1999: Lawyer Discipline

Disciplinary Proceeding Against Keith E. Broadnax

The Wisconsin Supreme Court suspended the law license of Keith E. Broadnax, 42, Milwaukee, for two years, effective June 21, 1999. The court ordered that Broadnax submit to random drug tests for one year prior to reinstatement. In addition, prior to reinstatement, Broadnax is required to establish that he has his drug addiction and medical disorder under control. Broadnax also was ordered to pay the cost of the disciplinary proceedings.

In 1997 Broadnax's law license was suspended for 90 days. The court ordered him to abstain from alcohol and controlled substances, undergo periodic drug screens, and provide quarterly reports to the Board of Attorneys Professional Responsibility (BAPR) on his treatment progress for three years. On July 22, 1997, Broadnax underwent a random urine screening at the request of BAPR's administrator, and that screening tested positive for the presence of cocaine. Broadnax acknowledged that he had used cocaine. The court found that Broadnax thereby committed a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b), and that his failure to abstain from the use of a controlled substance violated the court's license suspension order of 1997, in violation of SCR 20:8.4(f).

The remainder of Broadnax's misconduct concerned his conduct with the law firm where he was employed. Broadnax advised a client of the firm to make fee payments in a divorce matter payable to him rather than the firm. He then cashed those checks, totaling $725, and failed to turn the money over to the firm, thus converting the funds to his own use. In July 1997 he received two checks from an insurer as part of the settlement of a client's claim. Those checks were made payable to him, one for the firm's fee and another for the costs incurred by the firm in the matter. Broadnax endorsed those checks, failed to turn the proceeds over to the firm, and converted them to his own use. Also in July 1997, Broadnax reported to the firm that a check it had given him for reimbursement had been destroyed, and he asked for a replacement check. He received it, cashed both it and the original check, and retained the proceeds of both. In September 1997, an employee of the law firm reported that several of her compact discs had been taken without her permission. Shortly after Broadnax was terminated by the law firm in September 1997, he acknowledged to an attorney in the firm that he had taken those compact discs. The court found that in each of the foregoing matters, Broadnax engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

Broadnax was privately reprimanded in 1989 for failing to timely file the findings of fact, conclusions of law, and judgment in a divorce matter and for misrepresenting to BAPR during its investigation that he had filed those documents. The court suspended his license in 1997 as discipline for neglect of client matters, failure to communicate to a client the basis of his fee, failure to return an unearned fee, and failure to cooperate with BAPR in its investigation.

Public Reprimand of John R. Figlesthaler

John Figlesthaler, 44, Milwaukee, was a solo practitioner in or about late 1996-1997. During this time, three clients filed grievances against Figlesthaler.

The first client retained Figlesthaler to represent her in an action brought by the father of her child, seeking custody and support. The matter was concluded successfully, and, in March of 1997, the client requested the return of the original documents she had provided to Figlesthaler. Figlesthaler did not respond to her request. The client continued her attempts to contact him, until she found that Figlesthaler had left his office without leaving a forwarding address and had disconnected his office phone. When she could not contact him, she filed a grievance with BAPR.

The second grievance was filed by a client who alleged that Figlesthaler had lacked diligence in representing him in a criminal matter and had failed to respond to his requests for information. The third client alleged that Figlesthaler had not completed her representation regarding a liquor license problem, would not return the unearned fees, and failed to respond to her inquiries.

As to all three grievances, Figlesthaler failed to respond to BAPR's numerous inquiries, resulting in the matters being referred to a professional responsibility committee. Figlesthaler's failure to leave a forwarding address and failure to file an address change with the State Bar of Wisconsin caused great difficulty in locating Figlesthaler. Finally, he responded when contacted at his new place of employment, where he was not engaged in the practice of law. Figlesthaler provided sufficient information to conclude the investigation, and he returned the file of the first complainant. BAPR found that Figlesthaler, upon termination of his representation of the first client, had failed to surrender papers and property to which she was entitled, in violation of SCR 20:1.16(d). BAPR also found that Figlesthaler had failed to cooperate with the investigation of all three grievances.

BAPR took into consideration that Figlesthaler had previously had his license suspended for six months for failing to act with reasonable diligence in representing clients, failing to respond to clients' reasonable requests for information, failing to promptly deliver client funds held in trust, failing to deliver papers to a client entitled to them upon termination of his representation, and repeatedly failing to cooperate with BAPR in its investigation of client grievances. Subsequently, Figlesthaler's law license was suspended for 60 days, retroactive to the beginning of the six month suspension, for lack of diligence in handling the probate of an estate, for failing to make court appearances, and for failing to cooperate in the BAPR's investigation.

Disciplinary Proceeding Against Charles Glynn

On April 27, 1999, the Wisconsin Supreme Court suspended the law license of Charles Glynn, 37, Milwaukee for one year, effective June 14, 1999. The suspension stems from findings of misconduct in three matters.

In the first matter, Glynn was appointed guardian of the estate of an incompetent person in November 1992. From the modest estate of approximately $114,000, Glynn was to help the ward's daughter pay rent and other college expenses. However, he often failed to timely provide the payments to the daughter. In the second matter, Glynn was appointed in 1993 as the guardian of the $100,000 to $125,000 estate of an incompetent person, and Glynn was to make monthly support payments to the ward's minor child. In these two matters, Glynn received court approval for fees of $2,750 and $2,000, respectively, for services up to the summer of 1993. Thereafter, he did not seek court approval but paid himself the fees for 1993 through 1995, in the amounts of $31,600 and $40,925, respectively. The supreme court found that these fees were not reasonable.

In each of the estates, Glynn failed to file an inventory and filed only one accounting, for April - December 1993. One of the wards resided in a Veteran's Administration hospital, which repeatedly requested that Glynn file the accounts. When he did not do so, the ward's VA benefits were temporarily suspended. When Glynn did file an accounting in late 1995, showing substantial disbursements to himself for fees, the court declined to approve them and appointed an experienced guardian ad litem to look into the estates in November 1995. Glynn resigned as guardian in February 1996. The GAL found that there were problems with the handling of the estates. Although Glynn wrote the court that he would repay the estates, no funds were forthcoming.

In March 1996 Glynn prepared, dated, and signed letters to the successor guardian of the two estates, and wrote three checks payable to each, appearing to reimburse the fees he had taken without approval. Glynn did not send the letters and checks to the successor guardian, but he did send copies to the investigating GAL, giving the false impression that he had repaid the estates. Glynn testified that he had sent the copies to the GAL, without any cover letter, explanation, or prior arrangement, simply for his review and approval, and did not intend to mislead the attorney. The referee found that Glynn's testimony in that respect was not credible.

The investigating GAL acknowledged that Glynn was entitled to reasonable guardian fees, and Glynn did provide two itemized statements after some months, which purportedly listed the dates, services, and amount of time worked. The investigating GAL concluded that the statements were not truthful, and the referee found that they falsely indicated that Glynn had spent substantial time on the estates that, in fact, he had not spent. The investigating GAL advised Glynn that he would not contest a fee of $2,500 for each estate, but invited Glynn to submit an affidavit addressing the reasonableness, necessity, and amount of work claimed. Glynn said he would prepare an affidavit but never did. Thereafter, the bonding insurer advised Glynn that, unless he completely reimbursed the funds it was required to pay, the company would seek to have certain "fraud" language included in the court's judgment against Glynn. Glynn waived compensation in the matters and did not object to entry of the orders. The final orders for surcharge and judgment against Glynn included language that the judgments were for "money obtained by false pretenses" or for "fraud or defalcation while acting in a fiduciary capacity or embezzlement or larceny," as defined under federal criminal statutes.

The third matter involved Glynn's conduct as court-appointed conservator of a 93-year-old woman suffering from dementia who was moved from her apartment to a nursing home. This was a relatively simple matter with no complications warranting other than a customary charge. Over two and a half years, Glynn paid himself $10,950 from the estate, some without court approval. His records reflected charges for activity unnecessary for the proper performance of his duties. He filed the first inventory almost one year late, failed to obtain a bond as ordered by the court, and failed to timely pay the nursing home bills. He also failed to timely file for federal benefits when the conservatee's funds were exhausted and had problems valuing and cashing savings bonds, causing cash flow and federal benefits problems.

The court found that Glynn had charged unreasonable fees in the three matters, in violation of SCR 20:1.5(a); failed to seek court approval of fees, failed to timely file inventories and annual accounts, failed to timely submit fee billings, and failed to educate himself regarding guardianship and conservator proceedings, thereby failing to provide competent representation, in violation of SCR 20:1.1; failed to act with reasonable diligence and promptness in representing clients, in violation of SCR 20:1.3; and, having paid himself excessive and unauthorized fees, attempted to justify those payments with false itemized statements and by sending documents falsely indicating that he was making reimbursement, thereby engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

The referee noted that Glynn had "reaped substantial financial benefits from the modest estates of persons effectively unable to protect themselves, while performing no services of commensurate value." The court found that the large sums taken by Glynn from vulnerable victims and the purposeful pattern of deception he employed required a meaningful disciplinary response to protect the legal system and the public from similar misconduct. The court also required that Glynn make restitution to the clients and the bonding company for the harm his misconduct had caused them and stated that his law license would not be reinstated until he made that restitution. In addition, the court ordered that Glynn pay the costs of the proceeding.

Disciplinary Proceeding Against Keith E. Halverson

On April 27, 1999, the Wisconsin Supreme Court publicly reprimanded Keith E. Halverson, 60, of Prescott. The discipline was based on misconduct in two matters.

In the first matter, a couple retained Halverson for representation on a bankruptcy petition. Shortly after being retained, Halverson failed to respond to numerous calls placed by the clients, in violation of SCR 20:1.4(a), which requires a lawyer to comply promptly with a client's reasonable requests for information. Halverson's failure to communicate caused the clients to provide written notice to Halverson that his representation was terminated and that they desired the return of their retainer. Halverson waited more than 16 months before returning the unearned retainer, in violation of SCR 20:1.16(d), which requires that upon termination, a lawyer shall take steps to protect a client's interests, such as refunding any advance payment of fee that has not been earned.

In the second matter, a client retained Halverson for bankruptcy representation. Although Halverson knew the client was subject to garnishment proceedings, he delayed for about three years the filing of a bankruptcy petition on the client's behalf, contrary to SCR 20:1.3, which requires a lawyer to act with reasonable diligence on behalf of a client. In the interim, some $3,000 was garnished from the client's wages. In the years prior to the filing of the bankruptcy petition, the client attempted on many occasions to contact Halverson, but, for the most part, was unsuccessful, causing the court to conclude that Halverson violated SCR 20:1.4(a).

Halverson failed to fully cooperate in the investigation of the grievances, in violation of SCR 21.03(4) and 22.07(2), in that he failed to file required written responses to the grievances, and failed to respond to correspondence from the district professional responsibility committee to which the matters were referred. Halverson did appear at an investigative meeting conducted by the committee in the two matters.

Halverson has no prior discipline. His license has been administratively suspended since Oct. 31, 1997, for nonpayment of State Bar dues.

Disciplinary proceedings against Francis J. Kortsch

On April 27, 1999, the Wisconsin Supreme Court revoked the law license of Francis J. Kortsch, 36, Detroit, Mich. The revocation was the result of Kortsch's professional misconduct, consisting of theft from a client, for which he was convicted of a felony.

Kortsch was retained in 1991 to represent a Michigan union's health and welfare fund to collect unpaid health insurance premiums from delinquent employers. Kortsch was not licensed to practice law in Michigan, and he misrepresented to the union that he would obtain or was obtaining a license. However, he never filed an application with the Michigan bar.

Between September 1991 and July 1993, when he was discharged, Kortsch billed the union for filing fees and litigation services in connection with 42 matters, but he had not filed lawsuits in any of the matters. Kortsch generated detailed computer billings setting forth filing costs as well as attorney time charges for pretrials, scheduling conferences, and other litigation services. He attempted to conceal the misconduct by misrepresenting that his files had been tampered with. He failed to turn the files over to his client, the union, for more than a year, and then they were incomplete. An audit disclosed that he had fraudulently billed the union for a total of $48,563. After entering into a repayment agreement with the union, he did not comply.

Kortsch was charged in federal court in Michigan with one felony count of embezzling, stealing, and unlawfully converting to his own use approximately $48,000 from the union. When entering his guilty plea, Kortsch told the court that he had subcontracted the collection work to another attorney, while doing the billing himself, when in fact the work was not being performed. Kortsch was placed on five years' probation, with electronic monitored home confinement for 14 months, and was ordered to participate in a substance abuse program and make restitution to the union. At that time, Kortsch had repaid approximately $11,000.

The referee considered Kortsch's fraudulent billings as the product of a "calculated and brazen scheme" involving substantial sums of money. The Wisconsin Supreme Court found that Kortsch had committed a crime that adversely reflected on his honesty and trustworthiness as a lawyer, in violation of SCR 20:8.4(b); and his attempt to conceal the facts from his client constituted conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c).

Kortsch also was ordered to pay the costs of the proceeding. The court had previously suspended Kortsch's license for 60 days in May 1995 for practicing law while his license had been administratively suspended.

Disciplinary Proceeding Against Robin A. Nelson

By order dated April 27, 1999, the Wisconsin Supreme Court suspended for two years the law license of Robin A. Nelson, 35, who formerly practiced in Menomonie. The court accepted a stipulation between Nelson and BAPR wherein Nelson acknowledged that she had withdrawn client funds from her firm's trust account for her own use; that she had retained and used fees that belonged to her firm; and that she had taken deceitful steps to conceal her conduct, thereby violating SCR 20:8.4(c), SCR 20:1.15(a), and SCR 20:1.15(e).

The court found that a two-year license suspension was appropriate, noting that Nelson had reported her misconduct to BAPR, had cooperated fully in BAPR's investigation, and had made full restitution. Because Nelson indicated that there was a gambling problem involved in her misconduct, the court required that as a condition of reinstatement, Nelson must produce evidence from a competent addictionologist that her gambling disorder is under control and she is in compliance with whatever conditions are necessary to maintain her recovery.

Disciplinary Proceedings Against John W. Sheka

On April 27, 1999, the Wisconsin Supreme Court suspended for six months the law license of John W. Sheka, 38, who formerly practiced in Green Bay. The suspension is based on misconduct by Sheka in the handling of five client matters.

In July 1994 Sheka was retained to represent a client in a personal injury matter. Sheka and the client spoke several times concerning the status of the matter. In the final conversation, Sheka indicated that the insurance company wanted to review the client's medical records. The client subsequently planned to relocate out of state. In June 1996 she called Sheka and wrote Sheka informing him of her new address. Thereafter, the client was unable to contact Sheka directly and received no further response from him. The client eventually learned from another lawyer, who had been assisting Sheka in winding up his practice, that the statute of limitations on her claim had expired.

In 1996 Sheka represented another personal injury client. After the client had requested that Sheka settle the matter, in late 1996 Sheka informed the client that the matter had been settled and the check from the insurer was in the mail. Shortly thereafter, Sheka told the client that he had not yet received the check. Sheka then failed to keep scheduled appointments with the client and failed to return the client's telephone calls. In January 1997 when the client encountered Sheka at the courthouse, Sheka indicated that the client would need to commence legal action to recover her claim. Soon after, the client's file was returned to her. When the client reviewed it, the only documents it contained were a police report, one letter to the client, and some handwritten notes. The client found no medical records or any other correspondence, and discovered that Sheka had never contacted the insurance company.

In a third matter, Sheka was retained in January 1996 by a personal injury client. One month later, Sheka advised the client that he had submitted the claim to the insurer. During the next 10 months the client made numerous appointments to meet with Sheka to discuss the status of her matter, but Sheka canceled at least four of them. In mid-August 1996 Sheka wrote the client a check for $100 and told her not to tell anyone that he had given her the money. On the memo portion of the check, Sheka had written "investigation services." In September 1996 Sheka gave the client another $100 in cash to help the client with her personal expenses while she was waiting to hear from the insurer regarding her claim. In November 1996 Sheka informed the client that the insurer had increased its settlement offer from $10,000 to $12,000. Sheka advised the client to wait until January because the insurer needed to close out old cases by the end of the current year, and Sheka thought the insurer might offer as much as $18,000.

In early December 1996 the client informed Sheka that she wished to settle the matter for $12,000. During the next week, Sheka informed the client that the insurer had already sent the check and release forms to him. Several days later, when the client went to Sheka's office for an arranged appointment to sign the releases and obtain the settlement check, Sheka was not there. Sheka had left an envelope with the client's name on it taped to his office door. The envelope contained a check for $350 from Sheka with a letter indicating that the check from the insurer had not arrived and that the $350 check was to help with Christmas. The letter also indicated that Sheka would have to "front" the client more money for her impending trip out of state. The client returned the check to Sheka's office with a note indicating that she did not want Sheka's money and that she would wait for the insurer's check.

Two days later the client spoke to Sheka about the status of the insurer's check and Sheka indicated that it had been lost within one of the company's departments. Sheka told the client he was going to instruct the insurer to stop payment on the lost check, issue a new check, and have it delivered by express mail to his office. On Dec. 20, 1996, the client's husband went to Sheka's office to determine the status of the check and to express his concern about the delays. Thereafter, neither the client nor the client's husband had any contact with Sheka, despite their numerous visits to Sheka's office and continued telephoned calls.

In the fourth matter, Sheka represented a man who, in December 1996, had plead no-contest to a misdemeanor charge. The client had been placed on probation for two years and was required to receive sexual perpetrator counseling, to have no contact with the victim or the victim's family, and to make restitution to the victim for the victim's counseling. When the client informed Sheka that he did not agree with the result and wanted to consider an appeal, Sheka told the client to call him after the first of the year. In January 1997 the client repeatedly tried to contact Sheka regarding a potential appeal, but Sheka failed to return the client's calls. The client had paid Sheka approximately $2,500 for his services.

In the fifth matter, Sheka represented a client in a criminal matter that had commenced in 1996. Without notifying the court or his client, Sheka failed to appear at the scheduled final conference prior to jury trial. The court was unable to locate Sheka and told the client it would be necessary for him to retain other counsel. Thereafter, Sheka appeared before the court with the client on the date of the scheduled jury trial and the client entered a plea that resulted in a conviction. A sentencing hearing was scheduled for late July 1997. Sheka failed, however, to appear at the sentencing hearing and had not informed the client that he would not be there. Sheka also had failed to provide the client with a copy of the presentence report.

By letter dated July 29, 1997, the court wrote Sheka concerning his failure to appear at the sentencing hearing and his failure to provide his client with a copy of the presentence report. The court informed Sheka that the client's sentencing had been rescheduled for Aug. 21, 1997, and asked Sheka to contact the court by Aug. 1, 1997, to advise whether he would appear. Sheka failed to respond to the court's letter.

In all of the above matters, Sheka failed to respond to letters from BAPR requesting a written response to the allegation. Sheka also failed to cooperate in any way with an investigation by a district professional responsibility committee.

The court found that in the above matters Sheka failed to provide competent representation, contrary to SCR 20:1.1; failed to abide by the clients' decisions concerning the objectives of the representation, contrary to SCR 20:1.2(a); failed to act with reasonable diligence and promptness in representing a client, contrary to SCR 20:1.3; failed to keep a client reasonably informed about the status of a matter, contrary to SCR 20:1.4(a); failed to explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation, contrary to SCR 20:1.4(b); provided prohibited financial assistance to a client in connection with a pending or contemplated litigation, contrary to SCR 20:1.8(e); failed upon termination of representation to take steps reasonably practicable to protect the client's interests, contrary to SCR 20:1.16(d); engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, contrary to SCR 20:8.4(c); and failed to cooperate with BAPR's investigation, contrary to SCR 21.03(4) and SCR 22.07. In addition to the six-month suspension, Sheka was ordered to pay costs of the proceeding. Sheka had no prior disciplinary history.