Wisconsin Lawyer
Vol. 78, No. 11, November
2005
Private Reprimand Summaries
The Wisconsin Supreme Court permits the Office
of Lawyer Regulation (OLR) to publish, for educational purposes, in
an official State Bar publication a summary of facts and professional
conduct rule violations in matters in which the OLR imposed private
reprimands. The summaries do not disclose information identifying the
reprimanded attorneys.
The following summaries of selected private reprimands, imposed by
the OLR, are printed to help attorneys avoid similar misconduct
problems. Some of the summaries may indicate violations of the rules
that were in effect prior to Jan. 1, 1988. The current rules proscribe
the same types of misconduct.
Under the new rules of lawyer regulation, a court-appointed referee
will impose private reprimands with consent of the attorney. See SCR
22.09 (2000).
Neglect; Failure to
Communicate
Violations of SCR 20:1.3; 20:1.4(a)
An attorney, on appointment by the State Public Defender (SPD),
represented a man charged with attempted robbery. The defendant also
faced revocation of probation. The Department of Corrections (DOC)
placed the defendant on a probation hold after his arrest. The
attorney's representation covered the revocation matter and the criminal
charge.
Four months after the defendant was arrested, the DOC revoked his
probation and he began serving the prison sentence of two years
confinement and two years of extended supervision that had been imposed
and stayed for the prior felony conviction. When the robbery charge was
resolved by a guilty plea approximately three months later, the lawyer
requested that the court give the defendant credit for the time served
from the date of his arrest to sentencing. However, the court noted that
the defendant would only be entitled to credit for the time served until
his probation was revoked. The lawyer and the defendant could not recall
the exact date of revocation. The lawyer advised the court that he would
"double check that." The judgment of conviction indicated that credit
for time served was to be determined.
Three weeks after sentencing, the defendant wrote to the lawyer
asking about the sentence credit because his sentence notification
reflected no credit. The defendant also mentioned pursuing
postconviction relief, although the 20 days allowed for filing of a
notice of intent to pursue postconviction relief had passed. The lawyer
did not respond in writing to the defendant's letter nor did he forward
the letter to the SPD's office. The defendant called the lawyer
innumerable times over six months but only talked to the lawyer once.
The lawyer did not take any action to obtain the sentence credit.
After filing a grievance, the defendant wrote to the sentencing court
and requested sentence credit. One year after the initial sentencing,
the court entered an order granting the defendant 121 days of
credit.
The lawyer violated SCR 20:1.3 by failing to take any action on the
sentence credit and SCR 20:1.4(a) by failing to respond to the
defendant's requests for information regarding the credit. The lawyer's
disciplinary history consisted of a public reprimand issued more than 20
years ago for neglect and misrepresentation to a client and to the OLR's
predecessor regarding the neglect.
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Failure to Provide Competent
Representation; Failure to Abide by Client Decisions; Failure to
Communicate; Advancing an Unwarranted Claim; Failure to Cooperate with
OLR
Violations of SCR 20:1.1; 20:1.2(a); 20:1.4(a); 20:3.1(a)(1);
22.03(2)
A person (the client) hired an attorney to represent him as the
defendant in a lawsuit brought by the client's former attorney (the
plaintiff) for collection of fees. The client believed the plaintiff had
forgiven the debt and that, as a result, the client did not owe the
plaintiff any money. The attorney entered his appearance and filed an
answer on behalf of the client on July 23, 1999.
On Sept. 16, 1999, the plaintiff filed a motion for summary judgment,
which was scheduled to be heard on Oct. 18, 1999. On Oct. 12, 1999, the
attorney signed an affidavit in opposition to the motion for summary
judgment. The affidavit was filed with the court on Oct. 14, 1999. The
affidavit was based on information given to the attorney by his client,
rather than on personal knowledge as required by Wis. Stat. sec.
802.08(3).
Sometime before Oct. 18, 1999, the attorney told the plaintiff he
would not appear at the hearing to contest the motion. The attorney did
not inform his client of the date for the hearing on the summary
judgment motion nor did he tell his client that he was not going to
appear at the hearing to contest the motion. Neither the attorney nor
the client appeared at the motion hearing on Oct. 18, 1999.
According to the order granting the summary judgment motion, the
plaintiff advised the court that the attorney had notified him that the
client was "consenting to the entry of judgment." The order also stated
that the attorney's affidavit in opposition to the motion for summary
judgment was not timely filed and did not meet the statutory requirement
that it be based on personal knowledge.
The client did not consent to the entry of judgment against him.
The attorney states he told his client there was no valid defense to
the plaintiff's lawsuit, and admits he filed the answer to the complaint
and the affidavit opposing the motion for summary judgment in an effort
to negotiate a compromise and a settlement of the plaintiff's claim.
After the judgment was entered against the client and garnishment to
collect on the judgment was commenced, the attorney, at the client's
urging, filed a motion on Feb. 24, 2000, to reopen the judgment. At
about this same time, the judgment against the client was satisfied. The
motion to reopen the judgment was heard on April 17, 2000.
The motion to reopen the judgment contained no new information. At
the April 17, 2000, hearing the court denied the motion, stating,
"There's no basis, and it has not been made within a reasonable time
... I think the Court's time was wasted and also Counsel's time was
wasted." The court also pointed out that at the Oct. 18, 1999, hearing,
the motion for summary judgment had not been opposed.
The attorney failed to file a written response to the grievance until
after the OLR personally served him with a third request for a
response.
By stipulating, or tacitly consenting by his nonappearance, to the
granting of the plaintiff's motion for summary judgment, without first
consulting with and obtaining permission from his client for such
consent, the attorney violated SCR 20:1.2(a), which provides, in part,
that a lawyer shall abide by a client's decisions concerning the
representation's objectives.
By failing to inform his client of the summary judgment hearing date,
and by failing to inform his client that he would not appear at the
hearing and contest the motion for summary judgment, the attorney
violated SCR 20:1.4(a), which requires a lawyer to keep a client
reasonably informed about the status of a matter.
By filing an affidavit in opposition to the plaintiff's motion for
summary judgment when he knew there was no valid defense to the motion,
the attorney violated SCR 20:3.1(a)(1), which prohibits an attorney from
knowingly advancing a claim or defense that is unwarranted under
existing law.
By filing an affidavit in opposition to the motion for summary
judgment that was untimely and that did not meet the statutory
requirement that it be based on personal knowledge, the attorney failed
to provide competent representation, in violation of SCR 20:1.1.
By filing a motion to reopen the judgment when he knew there was no
basis for such a motion, the attorney violated SCR 20:3.1(a)(1).
By failing to file a written response to the grievance until after
the OLR personally served him with a third request for a response, the
attorney failed to fully and fairly disclose all facts and circumstances
pertaining to the alleged misconduct within 20 days after being served
by ordinary mail a request for a written response, in violation of SCR
22.03(2).
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Committing a Criminal Act; Failure to
Notify Supreme Court and OLR of Conviction
Violations of SCR 20:8.4(b); 21.15(5)
On Dec. 10, 2003, an attorney was convicted of a second OWI
misdemeanor offense, contrary to Wis. Stat. sec. 346.63(1)(a). The
attorney was sentenced to 25 days in jail, his driver's license was
revoked for 16 months, and he was fined.
On Jan. 8, 2004, the attorney was convicted of a third OWI
misdemeanor offense, contrary to Wis. Stat. sec. 346.63(1)(a), for which
he was sentenced to five months in jail, with Huber privileges, to
commence on April 5, 2004. The attorney's driver's license also was
revoked for 30 months and he was fined.
The attorney did not report his two misdemeanor convictions to the
OLR or to the clerk of the supreme court within five days, as required
by SCR 21.15(5). The attorney said his failure to report the convictions
was inadvertent in that he was an inactive member of the State Bar at
the time and it did not occur to him that he was required to report the
convictions.
By engaging in conduct resulting in two separate convictions for
second and third offenses of OWI, contrary to Wis. Stat. sec.
346.63(1)(a), the attorney committed criminal acts that reflect
adversely on his honesty, trustworthiness, or fitness as a lawyer in
other respects, in violation of SCR 20:8.4(b).
By failing to notify the clerk of the supreme court and the OLR of
his two misdemeanor convictions for OWI, the attorney violated SCR
21.15(5), which states that it is misconduct for an attorney to fail to
report a criminal conviction within five days to the clerk of the
supreme court and to the OLR.
The attorney had no prior discipline.
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Conflict of Interest
Violations of SCR 20:1.7(a); 20:1.9(a)
An attorney defended two clients in a nuisance action, filed by a
town, that concerned the clients' adjoining properties. The court issued
an injunction order that applied to both the clients' properties. The
attorney subsequently appeared on behalf of both clients in at least two
hearings related to enforcing the injunction order.
The attorney then filed an adverse possession action on behalf of one
client against the other. When the attorney filed the adverse possession
lawsuit, he was still listed as attorney of record for both clients in
the town's action. The attorney did not obtain written consent from
either client before filing the adverse possession action.
The court later reopened the town's action due to the town's
allegations of a continued violation of the court's injunction order. At
the hearing, the attorney entered an appearance, without informing the
court which client he was representing. At no time before the hearing
did the attorney either inform the second client that he was no longer
representing him in the nuisance action or file a formal withdrawal of
the second client's representation.
In the adverse possession case, the second client filed a motion to
disqualify the attorney based on a conflict of interest. The court
granted the motion with the qualification that if the attorney
voluntarily dismissed the matter, the court would allow the attorney to
continue as counsel for that purpose only. The attorney dismissed the
adverse possession case.
Another hearing was held in the town's action. At that time, the
attorney entered an appearance only on behalf of the first client;
however, the attorney did not file a formal motion to withdraw, send a
letter to the second client, or otherwise communicate to the second
client that he was not appearing at the hearing on his behalf.
After the second client's death, the attorney filed a second adverse
possession action against the second client's estate. The court granted
the estate's motion to disqualify the attorney, finding that an
attorney-client relationship existed between the attorney and the second
client in the past and that there was a substantial relationship between
the subject of the town's action and the adverse possession action.
As a result of the above conduct, the attorney was found to have
violated SCR 20:1.7(a) by representing one client in the first adverse
possession action against the second client while he was still attorney
of record for the second client in the town's action. The attorney was
additionally found to have violated SCR 20:1.9(a) by representing a
client in the second adverse possession action against the second
client's estate, due to the substantial relationship between the subject
of the town's action and the second adverse possession action.
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Ex Parte Communication with a
Tribunal
Violation of SCR 20:3.5(b)
A defendant was sentenced to six months in jail for a misdemeanor
charge. About a month and a half after he began serving his sentence,
the defendant and his mother each sent a letter to the sentencing judge
requesting a sentence reduction or early release. The defendant and his
mother did not send copies of their letters to the district attorney.
The judge forwarded the letters to the district attorney's office and
asked for a response. The attorney who prosecuted the case sent a letter
response to the judge opposing any reduction of the defendant's sentence
on various grounds, but the attorney did not send a copy of the letter
to the defendant. The court then sent a letter to the defendant, with a
copy to the attorney, denying the defendant's request and enclosing a
copy of the attorney's letter.
By failing to send the defendant a copy of a letter to a judge
arguing the state's position against a sentence reduction, the attorney
engaged in an ex parte communication with a tribunal, contrary to SCR
20:3.5(b).
The attorney had no prior discipline.
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Practice During Suspension;
Misrepresentation to Court; Failure to Maintain Trust Account
Records
Violations of SCR 10.03(6); 20:3.3(a);
20:1.15(e)
While a lawyer's law license was administratively suspended for
nonpayment of State Bar dues, he attended an initial appearance in a
criminal matter on behalf of a relative. When the court asked if he was
an attorney, the lawyer answered that he was, without telling the court
that his law license was currently suspended. When the court asked if he
was going to act as the defendant's attorney in the matter, the lawyer
replied, "Today I am." The lawyer thereby violated SCR 10.03(6) for
practicing law while suspended for failure to pay Bar dues, which rule
is enforceable under SCR 20:8.4(f), and SCR 20:3.3(a) for representing
to the court that he was an attorney without disclosing that he was not
currently allowed to practice. The lawyer provided no further
representation after the initial appearance.
An allegation also was made about a 1999 transaction in the lawyer's
client trust account. When the allegation was made, the lawyer had not
practiced law for at least three years. The lawyer was unable to produce
requested trust account records regarding the transaction. While the OLR
did not find clear and convincing evidence of a violation regarding the
transaction, the lawyer's failure to preserve his complete trust account
records for at least six years was in violation of former SCR 20:1.15(e)
(effective until July 1, 2004).
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