Vol. 75, No. 2, February
2002
Lawyer Discipline
The Office
of Lawyer Regulation (formerly known as the Board of Attorneys
Professional Responsibility), an agency of the Wisconsin Supreme Court
and component of the lawyer regulation system, assists the court in
carrying out its constitutional responsibility to supervise the practice
of law and protect the public from misconduct by persons practicing law
in Wisconsin. The Office of Lawyer Regulation has offices located at
Suite 315, 110 E. Main St., Madison, WI 53703, and Suite 300, 342 N.
Water St., Milwaukee, WI 53202. Toll-free telephone: (877) 315-6941.
Disciplinary Proceeding Against John Miller
Carroll
On Dec. 6, 2001, the Wisconsin Supreme Court suspended the law
license of John Miller Carroll, 40, Milwaukee, for one year, commencing
Jan. 10, 2002. In addition, the court ordered Carroll to pay the costs
of the disciplinary proceeding in the amount of $11,433.77, and
restitution to his client H.H., in the amount of $184.
The suspension was based upon Carroll's misconduct involving four
separate clients. In the first matter addressed by the court, the
client, H.H., retained Carroll in April 1997 to represent her in a
personal injury claim on a contingency fee basis. The insurer declined
Carroll's settlement proposal and he, therefore, filed a lawsuit on June
4, 1998. Carroll failed, however, to inform H.H that he filed the suit,
which was dismissed in November 1998 due to Carroll's failure to serve
the insurer. The court found that Carroll failed to act with diligence
in violation of SCR 20:1.3 by allowing the lawsuit to expire without
service, and of SCR 20:1.4(a) for failing to inform H.H. about the 1998
lawsuit and for failing to respond to her inquiries about the status of
her case throughout the representation.
After H.H. filed her grievance in July 1999, alleging a lack of
diligence and communication, Carroll filed a second lawsuit on her
behalf. In response to the grievance, Carroll indicated that he had
coincidentally filed a lawsuit just prior to receiving notice of the
grievance. Carroll failed, in two letters to staff, to reveal the
existence of the first, dismissed lawsuit. The court found that Carroll
thereby failed to fully and fairly disclose all facts and circumstances
pertaining to the alleged misconduct, in violation of former SCR 22.07
(2). When the matter was ultimately settled in January 2000, Carroll
charged H.H. the cost of filing fees for both lawsuits. The court
ordered that Carroll pay restitution for the filing fee necessitated by
his lack of diligence.
In the second matter considered by the court, Carroll represented
J.J. regarding a property damage claim he made when his motorcycle was
stolen on Oct. 29, 1997. The insurer issued a check on Aug. 20, 1998, in
full and final settlement of J.J.'s claim. In addition to Carroll and
J.J., a lien holder was listed as a payee. Carroll attempted to deposit
the check without obtaining an authorized endorsement from the lien
holder. The check was returned because of the missing endorsement.
Thereafter, Carroll requested that counsel for the insurer remove the
lien holder's name from the check, but she refused. Carroll, rather than
obtaining the lien holder's endorsement on his own, gave the check to
his client, J.J., and told him that the lien holder's signature was
required before the check could be deposited. J.J. returned the check,
bearing what purported to be an endorsement by the lien holder, to
Carroll's office, and on Oct. 19, 1998, Carroll deposited the check into
his trust account. Carroll did not question the authenticity of the
illegible signature despite his awareness of J.J.'s past untruthfulness.
In fact, the lien holder had not endorsed the check nor had anyone at
the company authorized endorsement of the check on its behalf. The court
found that Carroll engaged in conduct involving dishonesty, fraud,
deceit or misrepresentation, in violation of SCR 20:8.4(c), by setting
the fraudulent conduct in motion.
In the third matter, L.L. hired the Carroll firm to represent her
husband on criminal charges. L.L. assigned $5,000 of the posted bail to
cover Carroll's retainer in the event she was unable to raise the money.
Two weeks later, L.L. paid the $5,000 retainer using her credit card. In
June 1998, L.L.'s husband pleaded guilty and was sentenced to prison. On
June 8, 1998, two bail assignments, one in the amount of $5,000 and one
in the amount of $4,468, were sent to Carroll. Carroll returned the
$4,468 to L.L., but deposited the $5,000 into his business account
despite the fact that L.L. had paid the retainer. Carroll indicated that
he kept the $5,000 to cover any expenses or fees beyond the retainer.
However, Carroll had prepared no itemized bill substantiating charges
beyond the initial retainer when he deposited the additional $5,000 into
his business account. In fact, Carroll was entitled to none of the
$5,000 and eventually returned it to L.L. on Nov. 2, 1999. The court
found that Carroll violated SCR 20:1.15(a), by failing to hold the
$5,000 in trust; SCR 20:1.15(b), by failing to render a full accounting
and by failing to promptly return the funds to L.L.; and SCR 20:1.15(d),
by failing to put the funds in trust when it became clear that there was
a dispute concerning their respective interests.
In the fourth matter, R.A. paid Carroll $2,500 in May 1998 to
represent her son in a criminal matter. Shortly thereafter, however,
R.A. retained a different lawyer and requested a refund. Carroll agreed
in July 1998 to return $1,500 to R.A. Carroll claimed that the refund
check was not sent in July 1998 because it was mislaid. Five months
later, once the check was found, Carroll indicated that another check
was issued. The second check, however, was not mailed to R.A. for
another four months, during which time Carroll ignored R.A.'s repeated
inquiries. The court found that Carroll failed to promptly return
unearned fees, in violation of SCR 20:1.16(d)
The court determined that a one-year suspension was appropriate given
the extensive nature of Carroll's misconduct, which evinced a pattern of
deception and misdealing with clients. The court also noted Carroll's
prior discipline, which included two private reprimands and one public
reprimand, and indicated that Carroll has an apparent disregard for the
rules of professional conduct. Accordingly, a substantial sanction was
necessary to protect the public and to send the appropriate message to
attorneys of this state.
Disciplinary Proceeding Against James H.
Dumke
On Nov. 21, 2001, the Wisconsin Supreme Court ordered a two-year
suspension of the law license of James H. Dumke, 53, Janesville,
effective on that date.
Dumke represented a client who had been convicted in 1986 of
first-degree sexual assault and sentenced to 16 years in prison. On Oct.
1, 1996, before the client had reached his mandatory release date, the
state filed a petition under Wis. Stat. chapter 980 alleging that the
client was a sexually violent person. The client then retained Dumke to
represent him in the sexual predator proceeding. The client's mother
paid Dumke a retainer fee of $5,000.
After a probable cause hearing on the chapter 980 petition, the
client was placed in secure custody. Dumke requested a lengthy
continuance, stating that he wanted an expert to review the state's
report supporting the chapter 980 petition. Dumke said he would inform
the court when he was ready to proceed in the matter. His request for a
continuance was granted on Nov. 15, 1996.
No activity occurred in the case during the first half of 1997.
Subsequently, the client's case was scheduled for trial to commence on
Oct. 30, 1997. On the scheduled trial date, the client appeared with
Dumke. The client waived his right to trial, admitted the allegations in
the sexual predator petition, and was found to be subject to commitment
under chapter 980. At a subsequent dispositional hearing, the client,
again represented by Dumke, stipulated to being confined to a secure
mental health facility for treatment.
In November 1998, Dumke withdrew from the case. Successor counsel was
appointed and filed an appeal. Successor counsel also filed a motion
asking the appellate court to remand the matter to the circuit court for
a hearing on a claim of ineffective assistance of counsel. The remand
motion was granted, and an evidentiary hearing was held in the circuit
court at which Dumke, the client, and two experts testified.
The referee assigned by the supreme court found that Dumke had not
previously represented a chapter 980 client or otherwise handled a
chapter 980 case. Dumke knew, however, that his client was entitled to
an expert witness and also knew that his client was entitled to a
court-appointed expert. The referee found that the client's mother told
Dumke that she would be willing to hire an expert on her son's behalf if
one were needed. Dumke, however, never arranged for an expert to
testify.
The referee also found that Dumke was unfamiliar with the testing
methods and risk analysis on which the state's experts had based their
opinions that the client was a sexually violent person. Further, the
referee determined that Dumke had no experience in cross-examining
experts on those subjects and that he never reviewed with the client the
risk factor analysis or other instruments used by the state's experts.
The referee also found that Dumke never obtained an expert or submitted
any documents or reports to an expert to review either for evaluative or
testimonial purposes or to help Dumke prepare for cross examination of
the state's experts.
The referee found that Dumke had failed to adequately investigate the
sexual predator petition against his client. In this respect, at the
hearing on the ineffective assistance of counsel claim, the circuit
court ruled that given the nature of the chapter 980 evidence and in
light of Dumke's inexperience, he could not have performed an adequate
investigation or preparation without hiring an expert. The referee also
found that Dumke's rationale for not hiring an expert - that it was "too
risky" because the expert might provide an unfavorable opinion - was
flawed because if Dumke had retained an expert, that expert would not be
required to disclose unfavorable results unless the expert
testified.
The referee further found that Dumke had failed to adequately advise
his client of the advantages and disadvantages of proceeding to trial on
the chapter 980 petition. During the hearing on the ineffective
assistance of counsel claim, the client stated that if he had been
informed by Dumke that there was a basis upon which to challenge the
state's experts' opinions and reports at trial, the client would have
elected to have a trial on the chapter 980 petition.
The referee also observed that following the evidentiary hearing on
the ineffective assistance of counsel claim, the state filed a
post-hearing brief in circuit court conceding that Dumke's client should
be granted a new dispositional hearing in the chapter 980 matter in the
interest of justice. In August 1999, the circuit court ruled that
Dumke's performance in the chapter 980 proceedings had been deficient
and that his client had been prejudiced by the ineffective
representation. Accordingly, the circuit court vacated the finding that
Dumke's client was a sexually violent person under chapter 980 and set
the matter for trial. Before the trial commenced, the circuit court
reviewed the entire record and determined that the evidence failed to
establish that Dumke's client was a sexually violent person. As a
result, the chapter 980 petition was dismissed, and Dumke's client was
released from custody. The client's release occurred more than three
years after his mandatory release date on his sentence imposed on the
underlying criminal conviction.
The supreme court adopted the referee's finding that after
undertaking to represent a client in a specialized area of law with
which he was unfamiliar and inexperienced, Dumke had failed to gain the
requisite knowledge, do the necessary preparation, or seek appropriate
assistance to enable him to provide adequate representation in the
matter, contrary to SCR 20:1.1, which requires an attorney to provide
competent representation to a client. The supreme court also ordered
Dumke to pay the costs of the disciplinary proceedings.
This proceeding represents the sixth time that Dumke has been
disciplined for professional misconduct. Dumke was currently under a
disciplinary suspension dating from 1999. In addition, Dumke's
disciplinary record reflects a public reprimand in 1990; a six-month
suspension in 1992; a one-year suspension in 1998; and a second
suspension later in 1998.
Disciplinary Proceeding Against Christopher
L. O'Byrne
On Nov. 21, 2001, the Wisconsin Supreme Court suspended the law
license of Christopher L. O'Byrne, 48, of Port Washington, for 60 days
(effective Dec. 26, 2001) for misconduct in handling an estate. The
court also ordered O'Byrne to pay the costs of the disciplinary
proceeding. In 1994 O'Byrne consented to a public reprimand for engaging
in conduct involving dishonesty and misrepresentation, failing to
disclose facts necessary to correct a misapprehension, failing to fairly
and fully disclose all facts and circumstances pertaining to an
investigation, and failing to respond to a client's reasonable requests
for information.
The decedent of the relevant estate died on Nov. 22, 1995. An
application for informal administration was filed on Feb. 15, 1996. The
decedent's son was appointed personal representative on March 18, 1996.
O'Byrne was retained as attorney for the estate. The decedent's son died
on April 17, 1996, and a successor personal representative was appointed
on May 10, 1996.
The estate inventory was filed on Nov. 18, 1996. The estate became
delinquent in August 1997. On Sept. 24, 1997, the circuit court issued
an order to show cause why the estate was not closed. A series of orders
to show cause were issued through January 2001. On March 13, 2001, more
than five years after the estate was opened, it still had not been
closed. The circuit court issued an order of removal discharging O'Byrne
as attorney for the estate. During the investigation of the matter,
O'Byrne failed to respond to several requests from the Office of Lawyer
Regulation (OLR) for information.
The court found that O'Byrne failed to act with reasonable diligence
and promptness in representing the estate, thereby violating SCR 20:1.3.
The court also found that O'Byrne failed to cooperate with the OLR in
the investigation of the grievance, thereby violating former SCR
21.03(4) and former SCR 22.07(2) and (3).
Wisconsin
Lawyer
