Vol. 76, No. 8, August 2003

Lawyer Discipline

• Public Reprimand of John Miller Carroll
• Public Reprimand of Terry L. Nussberger
• Disciplinary Proceeding Against Darin S. Harmon

Public Reprimand of John Miller Carroll

The Office of Lawyer Regulation (OLR) and John Miller Carroll, 42, New London, entered into an agreement for imposition of a public reprimand pursuant to SCR 22.09(1). A referee appointed by the Wisconsin Supreme Court thereafter approved the agreement and issued the public reprimand on June 4, 2003, in accordance with SCR 22.09(3). The reprimand is based upon Carroll's representation of three clients.

In the first matter, a mother, P.W., on behalf of her then-minor daughter, J.A., retained Carroll in June of 1997 to represent J.A. in a personal injury claim arising from a car accident.

Before Carroll was retained, J.A.'s previous counsel and guardian ad litem had negotiated a settlement. The judge refused to approve the settlement, however, when P.W. objected on the basis that the amount designated as reimbursement to Price County for its medical assistance (MA) lien exceeded the amount she felt was appropriate. The settlement had called for paying $3,966.17 to Price County, approximately half of the lien. P.W. believed Price County should receive reimbursement only for J.A.'s hospital bill, which totaled $1,556.80. After the settlement failed, P.W. discharged J.A.'s counsel and retained Carroll.

On Feb. 2, 1998, Carroll wrote to P.W., informing her that he was "attempting to reduce the claim of the state to nothing." Carroll, however, took no action to negotiate a reduction or elimination of the lien until after reaching a settlement with the defendant's insurer on Nov. 30, 1999. Carroll did not contact the attorney for Price County, Bruce Marshall, until Dec. 1, 1999, when he wrote to Marshall and informed him that, in satisfaction of Price County's lien, J.A. was willing to pay the exact amount due for medical treatment.

On Dec. 13, 1999, Marshall wrote to Carroll in response, stating that Price County had withdrawn its 1997 offer to accept 50 percent of its lien, and that Price County was now willing to accept $5,299.84, the amount of all medical expenses incurred by J.A. Marshall also discussed Carroll's assertion, in a phone conversation earlier that day, that Carroll had sent a letter to Marshall early in his representation confirming that Price County would stand by its 50 percent offer. Marshall indicated that he had searched his file and could not find Carroll's letter but agreed to honor the original agreement if Carroll could produce the letter. After Carroll received Marshall's letter, he had no further contact with him.

In subsequent correspondence, Carroll failed to inform his client and the court of Marshall's position that Price County would no longer accept 50 percent of its lien. Carroll advised his client, in letters of Jan. 10, 2000, Jan. 13, 2000, Jan. 25, 2000, and April 12, 2000, that he was still attempting to get the lien reduced. In a March 19, 2000, letter to the court, Carroll stated that Marshall had agreed to accept payment of 50 percent of the original lien but was unwilling to go lower.

In his April 24, 2000, initial response to the grievance, Carroll informed the OLR that Price County was to be paid "a stipulated amount of 50 percent of their lien." In later correspondence to the OLR, Carroll admitted that the only action he took to negotiate a reduction of the lien was his one letter to Marshall of Dec. 1, 1999, and their one phone conversation of Dec. 13, 1999.

Carroll did not inform his client until Oct. 23, 2000 that Price County would no longer honor the original agreement regarding the MA lien.

On Dec. 1, 2000, Carroll wrote to J.A. and informed her that Price County had been paid $5,299.84. This was the amount of J.A.'s actual medical costs, which was approximately $1,300 more than Price County's original offer. Carroll further informed her that if she wanted to enforce the original agreement regarding the MA lien, she would need to petition the state and Price County.

In failing to take sufficient steps to pursue a reduction of the MA lien owed by his client, Carroll failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

In representing to Marshall that he had previously written a letter confirming the original agreement regarding the MA lien when he had written no such letter and in representing to the OLR and the court that Marshall had agreed to accept 50 percent of the original MA lien when no such agreement had been reached, Carroll engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of SCR 20:8.4(c).

In the second matter, D.S. retained Carroll on Feb. 10, 1999, to represent him in a civil action arising from a car accident. On Feb. 28, 1999, D.S. signed an affidavit wherein he stated that, as a condition of his representation, he was requesting that Carroll loan him money for living and other miscellaneous expenses. D.S. agreed to repay Carroll from any amounts recovered from the lawsuit but also stated that he would repay the loans regardless of the lawsuit's outcome. D.S. also stated that the loans were necessary for him to be able to effectively pursue his case.

Beginning on Feb. 29, 1999, and continuing through March 17, 2001, Carroll made loans to D.S. totaling $37,796.07 for living and other miscellaneous expenses. The loans were not for court costs or expenses of the litigation. In a letter to the OLR dated June 25, 2001, Carroll admitted to having made the loans to D.S. and provided an itemized list of all loans made to D.S.

In making loans to D.S. for the payment of living and other miscellaneous expenses, Carroll provided financial assistance to a client in connection with pending litigation, in violation of SCR 20:1.8(e).

In a third matter, M.R. retained Carroll on April 6, 1999, to represent him on charges of sexual assault of a child and possessing videotapes depicting nudity. On Sept. 17, 1999, M.R. was sentenced to 20 years in prison and five years of probation. Carroll also represented M.R. on his appeal.

On Dec. 23, 2000, M.R. wrote to Carroll, discharging him as counsel and requesting that Carroll send him his file. On Jan. 5, 2001, Carroll wrote to M.R. and stated that he would retrieve M.R.'s file and send it to him as soon as possible. On Jan. 12, 2001, M.R. again wrote Carroll and stated that he was still waiting for his file.

On Feb. 10, 2001, M.R. sent a document he entitled "Request for Court to Compel" to the court requesting that the judge compel Carroll to produce his file for him. On Feb. 16, 2001, the judge returned a copy of M.R.'s request to him with a handwritten note indicating that the court could not compel Carroll to return the file and suggesting that if M.R. did not receive his file, he may want to contact the Board of Attorneys Professional Responsibility (OLR's predecessor).

On Feb. 21, 2001, Carroll wrote a letter to M.R. stating that, as he had informed M.R. in January, he could not send M.R. his file until he spoke with M.R.'s girlfriend, S.K. The letter also stated that Carroll had enclosed all the documents he had in his possession. Although addressed to M.R., the letter was apparently delivered to S.K.

On March 14, 2001, M.R. wrote to Carroll stating that S.K. had forwarded him his letter of Feb. 21, 2001. M.R. again requested his file, as neither he nor S.K. had received it, and disputed Carroll's assertion that he was told Carroll needed to speak with S.K. before sending his file. On that same day, M.R. also wrote to the judge, informing him of the Feb. 21, 2001, letter and again stating he had never been told Carroll needed to speak with S.K. before sending the file.

On March 15, 2001, Carroll wrote to M.R. and stated that he had sent his file C.O.D. but the institution where M.R. was incarcerated would not accept it. Carroll also stated that he would resend it. On March 22, 2001, Carroll wrote to the judge informing him that he was resending M.R.'s file. M.R. finally received his file on March 28, 2001.

By failing to return M.R.'s file to him for more than three months after being discharged, Carroll failed, upon termination of representation, to surrender papers to which his client was entitled, in violation of SCR 20:1.16(d).

In 1992 Carroll was privately reprimanded for failing to hold disputed funds in trust in violation of SCR 20:1.15(d). In 1997 Carroll was privately reprimanded for misrepresenting that he had filed a motion, in violation of 8.4(c), and for filing a motion on his client's behalf after being discharged, in violation of SCR 20:1.16(a)(3). In 1999 Carroll was publicly reprimanded for failing to act diligently and failing to communicate with a client in violation of SCR 20:1.3, 20:1.4(a), and 20:1.4(b). In 2001 Carroll's law license was suspended for one year for violations of SCR 20:1.3, 20:1.4(a), 20:1.15(a), 20:1.15(b), 20:1.15(d), 20:1.16(d), 20:8.4(c), and 22.07(2), in connection with his representation of four separate clients. Carroll's petition for reinstatement from the suspension is pending.

Public Reprimand of Terry L. Nussberger

The OLR and Terry L. Nussberger, 46, Ladysmith, agreed to an imposition of a public reprimand pursuant to SCR 22.09(1). A referee appointed by the supreme court thereafter approved the agreement and issued the public reprimand in accordance with SCR 22.09(3).

The reprimand is based upon Nussberger's conduct in two OLR investigations. In the first, the State Public Defender (SPD) appointed Nussberger on 16 occasions to represent defendants in criminal appeals during a four-year period. In 11 of the cases, Nussberger filed no merit reports without explaining to his clients the options that were available to them, contrary to SCR 20:1.4(b), which requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. In addition, having concluded that two of his clients did not have any meritorious issues on appeal, in failing to set out for them the options available to them and to inform them that the choice of direction lay with them, and not Nussberger, Nussberger again violated SCR 20:1.4(b).

After Nussberger's no merit reports were filed with and accepted by the court of appeals, Nussberger failed to apprise his clients of those developments in their respective cases, contrary to SCR 20:1.4(a), which states, "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Further, Nussberger violated SCR 20:1.4(b) when, after the court of appeals accepted his no merit reports, he failed to notify his clients about their right to petition for review. In failing to notify his clients about their right to petition for review, Nussberger also violated section 809.32(3), a statute that regulates the conduct of lawyers, and, consequently, violated SCR 20:8.4(f), which makes it professional misconduct for a lawyer to violate such a statute.

Nussberger also committed misconduct in submitting documentation to the SPD for payment of his services. In 11 cases, Nussberger submitted documentation certifying that a no merit report was filed and accepted by the court of appeals and that the client had been advised of the right to petition for review. In none of those cases, however, had the court of appeals acted on the no merit report as of the date Nussberger submitted the case summary on the matter. Also, in none of those cases had Nussberger advised his client of the right to petition for review, and, in fact, Nussberger could not have done so since the outcome of the case was unknown.

In late January 1998, a SPD employee warned Nussberger not to request payment until a case has reached final disposition. Nussberger, however, continued to file premature and inaccurate documentation. The court of appeals eventually accepted Nussberger's no merit reports in most matters, but he did not inform the clients about the court's decision or of the client's right to petition for review.

In filing five case summaries with the SPD prior to January 1998 that erroneously stated the court of appeals had accepted Nussberger's no merit report and Nussberger had notified his client of the client's right to file a petition for review, Nussberger engaged in conduct involving misrepresentation, contrary to SCR 20:8.4(c). Having been cautioned against the filing of premature payment vouchers and case summaries, in filing six case summaries thereafter that erroneously stated the court of appeals had accepted Nussberger's no merit report and Nussberger had notified his client of his client's right to file a petition for review, Nussberger further engaged in conduct involving misrepresentation, contrary to SCR 20:8.4(c).

In the second investigation, Nussberger was appointed in 1999 to represent a man on an appeal following probation revocation and the imposition of a prison sentence. Nussberger filed a notice of appeal. Contrary to SPD policy, Nussberger never met with the client or spoke with him by telephone, although Nussberger communicated with him in writing. The client frequently complained to Nussberger and the SPD about Nussberger's lack of contact with him.

A court reporter omitted preparing a transcript of the client's sentencing hearing, and Nussberger did not request that it be prepared. Nussberger subsequently filed a no merit brief even though he had not reviewed the sentencing transcript prior to preparing the brief, when the only appealable issue was the sentence. Nussberger filed the no merit brief even though he had not informed the client of his conclusions that there were no meritorious issues to appeal, nor had Nussberger informed the client of his options and learned how the client wished to proceed.

As stated above, in January 1998 a SPD employee had instructed Nussberger not to request payment prematurely. Nussberger, however, subsequently submitted a request for payment in this case only three days after filing the no merit brief, certifying that a no merit report had been filed and accepted by the court of appeals and that the client was advised of the right to petition for review. The court of appeals had not yet received the no merit report, and Nussberger could not have informed his client of his option to petition the Wisconsin Supreme Court for review prior to the court of appeals' issuing a decision.

The court of appeals subsequently issued an order, noting that the sentencing transcript had not been prepared and ordering that the transcript be prepared and submitted to the court. Nussberger told the SPD that he would petition to reconsider his no merit brief after he received the transcript. The court of appeals subsequently confirmed the trial court's sentence after conducting an independent review and finding no appealable issues. Nussberger resubmitted his bill to the SPD and did not charge for services performed after he first filed the no merit report. Nussberger duly informed his client of his right to appeal the court of appeals' decision to the Wisconsin Supreme Court. At Nussberger's request, his name was removed from the SPD's list of attorneys who provide appellate work. Nussberger told the OLR that he may have prepared the no merit brief without the sentencing transcript because he mistook the sentencing transcript from the original sentencing for the transcript of the sentencing hearing after revocation.

In failing to obtain and review the transcript of the sentencing hearing prior to submitting a no merit report in the client's case, when the only appealable issue was the sentence that was imposed by the trial court, Nussberger failed to provide competent representation, which is defined in SCR 20:1.1 as requiring the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Having concluded that his client had no meritorious issue on appeal, in failing to discuss with the client the options available to him and to inform the client that the choice of direction was the client's, not Nussberger's, Nussberger violated SCR 20:1.2(a), which requires a lawyer to abide by a client's decisions concerning the objectives of representation and to consult with the client as to the means by which they are to be pursued, and SCR 20:1.4(b).

In failing to conduct a personal interview with his client either in person or by telephone, as required by SPD policy, Nussberger violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client. In failing to respond to several letters from his client requesting information on the status of the case and that Nussberger meet with him, Nussberger violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

Having been cautioned by the SPD's office in January 1998 against the filing of premature payment vouchers and case summaries, in subsequently filing a voucher and summary in March 2000 that stated that the court of appeals had accepted the no merit report and that Nussberger had notified his client of the client's right to file a petition for review, when, in fact, the court had not yet received the brief and Nussberger had not informed his client of his right to petition for review, Nussberger engaged in conduct involving misrepresentation, contrary to SCR 20:8.4(c).

Disciplinary Proceeding Against Darin S. Harmon

The Wisconsin Supreme Court publicly reprimanded Darin S. Harmon, of Dubuque, Iowa, an attorney also licensed to practice law in Wisconsin, as discipline reciprocal to that imposed upon Harmon by the Iowa Supreme Court in 2002.

Harmon's public reprimand resulted from Harmon engaging in an impermissible issue conflict and communicating with another on the subject of the representation with a party known to be represented by a lawyer. Harmon represented a husband in a dissolution proceeding. Harmon urged at the dissolution proceeding that the parties were not husband and wife, notwithstanding his law firm's prior acknowledgment of the parties' status as husband and wife in legal documents previously prepared by the firm. Further, Harmon's client brought the wife, who was represented at the time, to Harmon's office in an attempt to convince the wife to settle the dissolution by agreeing to accept the provisions of an inter vivos trust. Harmon had a partner in his firm, who previously drafted the trust, meet with the wife to explain the contents of the inter vivos trust to her.

Harmon stipulated to the propriety of identical, reciprocal discipline.

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