Vol. 78, No. 7, July
2005
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 Michael J.
Backes
In an opinion filed May 25, 2005, the Wisconsin Supreme Court ordered
a public reprimand of Michael J. Backes, Milwaukee, for professional
misconduct in three client matters. Disciplinary Proceedings Against
Backes, 2005 WI 59. The court further ordered that Backes make
restitution by refunding fees in two of the matters.
In the first matter, following a criminal conviction that was
affirmed on appeal, a man contacted Backes in March 1998 about possible
postconviction representation. The next month, the man mailed Backes a
check for $2,500, representing Backes' flat fee in the matter. Backes
met with the client in prison in June 1998, and Backes stated he would
file a postconviction motion on the client's behalf within the next 60
days. Backes filed nothing. The client made several attempts to
ascertain the status of the matter, including three attempts to
terminate Backes' representation and to obtain a refund of the retainer.
By failing to file a postconviction motion or to conclude his review of
the client's file for more than 2.5 years, Backes failed to act with
reasonable diligence and promptness, contrary to SCR 20:1.3. In
violation of SCR 20:1.4(a), Backes did not keep the client reasonably
informed about the status of the matter nor respond to the client's
written inquiries as to case status. By failing to respond to the
client's spe-cific inquiries about various postconviction relief issues,
Backes failed to explain a matter to the extent necessary to permit the
client to make informed decisions regarding the representation,
violating SCR 20:1.4(b). By failing to refund the full fee that the
client paid until May 2002, after the client filed a grievance, Backes
violated SCR 20:1.16(d).
In a second matter, a woman hired Backes on Jan. 28, 2000 to
represent her son in a criminal case. The woman signed an agreement to
pay Backes a flat, "nonrefundable" fee of $2,500 to resolve the case
short of trial. Backes met with the client in jail on Jan. 31, 2000, and
the client asked Backes to immediately file a motion for bail reduction.
The client's mother made the same request, explaining it was a high
priority. Backes had not filed the requested motion as of Feb. 25, 2000.
His representation was then terminated. The mother also requested an
itemization and return of any unearned fees. Successor counsel was hired
on Feb. 28, 2000. That attorney moved for bail modification on March 7,
2000, and the motion was granted the same day. On March 29 and May 3,
2000, the client's mother again requested that Backes return the
unearned fees. It was not until March 21, 2002, some two years after
Backes was discharged, that he provided the mother with a partial refund
of $1,500. In imposing discipline, the supreme court concluded that
Backes failed to act with reasonable diligence and promptness in
representing the client, violating SCR 20:1.3, and that Backes failed to
timely refund an advance payment that had not been earned, violating SCR
20:1.16(d). Adopting the referee's recommendation, the court ordered
that Backes refund an additional $500 to the client.
In a third matter, in November 1999 the mother and aunt of a man
imprisoned following a 1993 felony conviction hired Backes to file a
motion for post-conviction relief on behalf of the man. The mother
signed an agreement to pay Backes a nonrefundable fee of $2,500, which
the aunt delivered in installments of $1,500 on Nov. 18, 1999, and
$1,000 a month later. The women believed that they were paying to bring
a motion to court, and they testified in the disciplinary action that
they would not have paid $2,500 just for case review. The aunt acted to
terminate the representation on April 29, 2000, and requested a refund
of funds advanced. On March 21, 2002, Backes refunded $2,250 of the
$2,500. In failing to complete a review of the client's case between
Nov. 19, 1999 and April 29, 2000, Backes failed to act with reasonable
diligence and promptness in representing the client, violating SCR
20:1.3. In violation of SCR 20:1.4(a), Backes failed to respond to a
Jan. 27, 2000, letter from the client containing suggestions and
questions, declined the client's calls from prison, and further failed
to address inquiries from the client's family. Backes violated SCR
20:1.16(d) by not refunding any portion of the funds advanced on behalf
of the client until March 2002. The court's discipline order requires
Backes to return the remaining $250 of the total $2,500 advanced on the
client's behalf.
In addition to imposing the public reprimand and the restitution
orders, the court ordered that Backes pay the full $9,863.85 costs of
the disciplinary proceeding. Members of the court also continued
analysis of issues surrounding cost assessments in two separate
concurring opinions and in a separate opinion that concurred in part
with and dissented in part from the outcome.
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Disciplinary Proceeding against Jay
A. Felli
On May 25, 2005, the Wisconsin Supreme Court publicly reprimanded Jay
A. Felli, Brookfield. Disciplinary Proceedings Against Felli,
2005 WI 58. A referee found that Felli committed three of the 11 counts
of misconduct alleged by the Office of Lawyer Regulation (OLR).
Accordingly, the referee recommended a three-month suspension rather
than the one-year suspension sought by the OLR. Felli appealed. The
court adopted the referee's conclusions as to Felli's misconduct,
finding that Felli violated SCR 20:1.3 by failing to act with reasonable
diligence and promptness in his representation of a divorce client, and
violated SCR 22.03(6) by making misrepresentations to the OLR during two
of its grievance investigations, but the court determined that a public
reprimand represented the appropriate discipline. The court also ordered
that Felli pay the $22,171.60 costs of the disciplinary proceeding.
Felli had been privately reprimanded in 1997 for practicing law while
his license was suspended for failing to pay State Bar dues.
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Public Reprimand of Gordon F.
Barrington
The OLR and Gordon F. Barrington, 52, Wauwatosa, agreed to the
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 on May 2, 2005, in accordance with SCR
22.09(3).
A woman who was a defendant in a civil suit retained Barrington in
December 2002 to represent her. After an amended complaint was filed and
answered, Barrington was served with the plaintiff's interrogatories in
mid-October 2003. Barrington said he temporarily misplaced the client's
file when he took it home to work on it. Barrington did not inform the
client about the interrogatories or the need to respond to them, nor did
Barrington respond to the interrogatories.
On Dec. 8, 2003, the plaintiff filed a motion for summary judgment or
for an order to respond to the interrogatories. The motion was scheduled
for a hearing on Dec. 15, 2003. Because Barrington believed the notice
for the motion hearing was insufficient under local rules and because he
did not see the Dec. 15, 2003 hearing scheduled on the Consolidated
Court Automation Program (CCAP) records, Barrington said he mistakenly
calendared the motion hearing for Feb. 17, 2004, which was the next
scheduled date he noted on CCAP.
Barrington did not tell the client about the plaintiff's motion or
the Dec. 15, 2003, hearing date nor did Barrington appear at the
hearing. The circuit court therefore granted a default judgment against
the client.
On or about Jan. 19, 2004, the client telephoned Barrington about
another matter and Barrington told her that a judgment had been entered
against her in the civil matter. Barrington believed he had only
recently discovered the judgment on CCAP while working on the file and
did not think he had received notice of the judgment entry.
Barrington and the client met on Jan. 27, 2004, to discuss the
matter. The client said Barrington told her he would prepare the answers
to the interrogatories and begin preparing documents to request relief
from the judgment by the end of the next day. According to Barrington,
he said he would try to prepare answers to the interrogatories within 48
hours. Between Jan. 29, 2004, and Feb. 5, 2004, the client left several
messages on Barrington's office phone and his cell phone but received no
reply. Barrington stated that he was ill and out of the office on Jan.
30, 2004, and Feb. 2, 2004. The client reached Barrington by phone on
Feb. 5, 2004, and he told her he was still working on the interrogatory
answers and other documents. The client then terminated Barrington's
representation and retained successor counsel.
The successor counsel successfully moved to reopen the judgment, and
the underlying civil suit was settled before trial in August 2004.
However, after the judgment was reopened, the client was ordered to pay
$1,238.25 to the plaintiff's attorney for fees and costs incurred in
connection with supplemental proceedings the plaintiff instituted
following entry of the default judgment. Additionally, the client
maintained that a portion of the $10,897 in attorney fees she paid to
successor counsel was incurred for work related to reopening the
judgment and therefore was the direct result of Barrington's
neglect.
On Oct. 27, 2004, Barrington tendered a check payable to the trust
account of the client's successor counsel for $1,238.25 to reimburse the
client for the amount the court ordered her to pay when reopening the
judgment. Barrington also stated his intention to reimburse the client
for her costs related to reopening the judgment.
Barrington's failure to respond to interrogatories and failure to
attend the Dec. 15, 2003, motion hearing, thereby causing a default
judgment to be entered against his client, and his failure to promptly
prepare a motion for relief from judgment constituted a lack of
diligence, contrary to SCR 20:1.3. Barrington's failure to inform his
client of receipt of interrogatories, to notify his client of the Dec.
15, 2003, motion hearing and the subsequent default judgment against
her, and to respond to several of his client's phone calls after she
learned of the default judgment violated SCR 20:1.4(a), which requires a
lawyer to keep a client reasonably informed and to respond to reasonable
requests for information.
Additionally, by failing to file a written response to the grievance
until after he had received three written requests for a response, the
last of which was personally served on him, Barrington violated SCR
22.03(2), which requires a lawyer to file a written response within 20
days of a written request to do so. By failing to file a written
supplemental response at the OLR's request until after the Wisconsin
Supreme Court issued an order to show cause why his license should not
be suspended for failure to cooperate, Barrington also violated SCR
22:03(6), which provides that a lawyer's willful failure to provide
relevant information in the course of an investigation is
misconduct.
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Public Reprimand of Michael
Roe
The OLR and Michael Roe, 61, Rhinelander, agreed to the imposition of
a public reprimand pursuant to SCR 22.09(1). A supreme court-appointed
referee thereafter approved the agreement and issued the public
reprimand on April 22, 2005, in accordance with SCR 22.09(3).
Roe was appointed by the State Public Defender (SPD) to represent a
defendant in two separate criminal matters. Sentencing in both cases
occurred on the same day. The sentence in one case was for a bifurcated
one-year prison term, which the court later amended to a one-year jail
term because a bifurcated prison sentence must be for at least 15
months.
On the day of sentencing the client asked Roe to file a notice of
intent to pursue postconviction relief. Roe did not file a notice of
intent until after the time for doing so had expired.
Roe did not respond to the client's several attempts to contact him
after sentencing regarding postconviction matters.
After Roe filed a notice of intent to pursue postconviction relief,
the SPD mailed a letter to Roe informing him that, in light of his
untimely filing of the notice of intent in the client's cases, it would
be necessary for Roe to file with the court of appeals a motion to
extend the time for filing the notice. The letter explained that the SPD
would be unable to appoint appellate counsel until Roe filed the motion.
Additionally, the SPD provided Roe with a sample motion he could use as
a model and asked him to send the SPD a copy of the motion after he
filed it.
Roe did not file the motion for a time extension. Roe submitted no
evidence that he communicated with the client in any way about the
untimely filing of the notice of intent, about the SPD's request that he
file a motion for an extension, or about his failure to file that
motion. Roe said he may have been waiting to file the motion to extend
the time until the trial court amended the sentence in the second case,
but he admitted that he had no "acceptable excuse" for his failure to
timely file the notice of intent or for his failure to file a motion for
an extension.
Roe's failure to timely file a notice of intent to pursue
postconviction relief in the client's cases, and his failure, on the
SPD's request, to file a motion with the court of appeals to extend the
time for filing a notice of intent, constituted a lack of diligence,
violating SCR 20:1.3. Roe's failure to respond to the client's inquiries
regarding postconviction matters and his failure to keep the client
informed about developments regarding the untimely filing of the notice
of intent, violated SCR 20:1.4(a), which requires a lawyer to keep a
client reasonably informed and to respond to reasonable requests for
information.
Roe was suspended for 90 days in 1983 for misconduct in two client
matters. Additionally, Roe received two private reprimands, one in 1985
and the other in 1990, both for failing to adequately communicate with
clients. Roe also was suspended for six months in 1996 for multiple
counts of misconduct in handling a client matter, which misconduct
included a lack of diligence and a failure to communicate.
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Public Reprimand of Edward J.
Ritger
The OLR and Edward J. Ritger, 58, Random Lake, agreed to the
imposition of a public reprimand pursuant to SCR 22.09(1). A supreme
court-appointed referee thereafter approved the agreement and issued the
public reprimand on April 19, 2005, in accordance with SCR 22.09(3).
Ritger had been the attorney for a man and his wife since about 1984.
The man died in January 2001, and his will provided that his son and the
decedent's wife, the son's stepmother, act as co-personal
representatives for his estate. Ritger, acting as the attorney for the
estate, filed a Petition for Administration and had the will admitted to
probate on April 23, 2001. Ritger represented the estate and also
represented the son and the stepmother in their capacities as copersonal
representatives of the estate.
In a May 2001 letter, Ritger informed the son that, although his
father's marital agreement with the stepmother provided that she receive
all life insurance proceeds, the son had been listed as a beneficiary of
and received the proceeds from one of his father's life insurance
policies. Ritger proposed that the son give to the stepmother from
estate assets an amount equivalent to the life insurance proceeds the
son had received. Ritger told the son that the stepmother was his client
and he advised the son to get separate legal advice with respect to
"matters which may involve a conflict of interest." Nevertheless, Ritger
stated, "I am, however, willing to complete the probate paperwork at
[the stepmother's] expense because the marital agreement requires [the
stepmother] to pay for that expense."
On Aug. 6, 2001, the deadline for filing claims, Ritger filed a claim
against the estate on behalf of the stepmother for the life insurance
proceeds allegedly due her. The son said he did not learn of the claim
until 2003. Ritger cannot confirm that he sent a copy of the claim to
the son, but he said he thought the son was monitoring the estate on the
Internet and was aware of the claim. There was no court activity in the
estate after Aug. 6, 2001, until a notice of overdue inventory was filed
on June 12, 2002. Ritger subsequently filed a petition to extend the
time to file the inventory, and the general inventory was filed on Oct.
14, 2002. There was no further court activity after the general
inventory was filed until the court sent a Notice of Delinquent Estate
to the copersonal representatives on June 11, 2003. Subsequently, on
July 1, 2003, Ritger requested a scheduling conference due to the
stepmother's unresolved claim.
The son actively involved his attorney sometime in the spring of 2003
to assist him in concluding his father's estate. That attorney's
associate sent a letter to Ritger on April 14, 2003, asking for
information about the stepmother's claim.
On Aug. 8, 2003, a scheduling conference was held and the court
ordered Ritger removed as attorney for the estate and as attorney for
the stepmother. Thereafter, the stepmother retained successor counsel to
represent her in her claim against the estate, both the son and the
stepmother resigned as copersonal representatives, and a different
attorney was appointed personal representative.
Ritger indicated that some of the delay in processing the estate was
because he developed health problems in the fall of 2002 and had surgery
in January 2003, from which he was recovering into the spring of
2003.
By representing an estate and its copersonal representatives at the
same time that he represented one of the copersonal representatives
personally as a claimant against the estate, Ritger engaged in a
conflict of interest, contrary to SCR 20:1.7(a). Ritger's failure to
advance the estate's interests between Aug. 6, 2001, when a claim was
filed against the estate, and Sept. 10, 2003, when he was removed as
attorney for the estate, constituted a lack of diligence, contrary to
SCR 20:1.3. Ritger violated SCR 20:1.4(a) by failing to keep the son,
one of the copersonal representatives, reasonably informed about the
status and progress of the estate proceedings between July 2001 and June
2003, and in particular, by failing to notify the son about the claim
filed against the estate in August 2001.
Ritger received a private reprimand in 1996 for violations of SCR
20:1.3 and SCR 20:1.4(a) in connection with his representation of a
client in a real estate matter and for his failure to cooperate in the
investigation of the matter. In 2003 Ritger was privately reprimanded
for communication with a represented party, contrary to SCR 20:4.2.
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