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Vol. 72, No. 6, June 1999 |
Professional Discipline
The Board of Attorneys Professional Responsibility, an arm
of the Wisconsin Supreme Court, assists the court in discharging
its exclusive constitutional responsibility to supervise the
practice of law in this state and to protect the public from
acts of professional misconduct by attorneys licensed to practice
in Wisconsin. The board is composed of eight lawyers and four
nonlawyer members, and its offices are located at Room 315, 110
E. Main St., Madison, WI 53703, and Room 102, 611 N. Broadway,
Milwaukee, WI 53202.
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.
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