• Private Reprimand Summaries

Professional Discipline

Disciplinary proceeding against John M. Baker

The Wisconsin Supreme Court suspended the law license of John M. Baker, 39, Milwaukee, for six months, effective Nov. 3, 1997, as discipline for professional misconduct. The court also ordered that the following conditions be imposed upon reinstatement of Baker's license: 1) a psychiatric evaluation; 2) if diagnosed as having a psychiatric condition causally related to his professional misconduct, verification of treatment and recovery prior to reinstatement; 3) for two years following reinstatement, supervision of his practice by an attorney approved by the Board of Attorneys Professional Responsibility (BAPR).

In March 1996 the Wisconsin Court of Appeals ordered Baker to withdraw a no merit report he had filed on behalf of a client in a criminal appeal, to file a post-conviction motion within 20 days and to inform the court that he had done so. When the court of appeals learned that Baker had not complied with that order, it fined him $500 and dismissed him from the case. Thereafter, Baker did not turn over the client's file to successor counsel, despite a request to do so. The court of appeals found Baker in contempt for failing to pay or make arrangements to pay the $500 penalty previously ordered. The supreme court found that Baker's failure to withdraw the no merit report and file a post-conviction motion, as ordered by the court of appeals, constituted a failure to act with reasonable diligence and promptness in representing a client, contrary to SCR 20:1.3. His failure to comply with that order and failure to pay, or notify the court of his inability to pay, the $500 fine constituted knowing disobedience of the rules of that court, in violation of SCR 20:3.4(c). His failure to turn over the client's file to successor counsel violated SCR 20:1.16(d). Additionally, Baker failed to cooperate with BAPR's investigation of this matter, in violation of SCR 21.03(4) and 22.07(2) and (3).

While representing another client in a criminal matter, Baker did not return to court as ordered and failed to appear at a pretrial conference. When he did not appear at the rescheduled pretrial, the court removed him as the client's attorney. Baker also failed to appear at another client's preliminary hearing until five hours after it was scheduled to be held. He had to be telephoned by court staff before making two other appearances in that client's matter, and he did not appear at all for a scheduled court appearance. The court found that Baker failed to act with reasonable diligence and promptness in representing these clients, in violation of SCR 20:1.3.

In March 1996, after filing a personal injury action on behalf of a client, Baker did not respond timely to the defendant's written interrogatories, did not appear at the hearing on their motion to compel discovery, and failed to file a witness list, special damages list and a permanency report within the deadline established by the scheduling order. After failing to appear or have his client appear for a scheduled deposition in February 1997, Baker told the court that he was experiencing some personal mental health problems, and the court adjourned the matter to allow him time to resolve them. Thereafter, Baker did not appear at a scheduled motion hearing in the matter or at the rescheduled hearing. The court found that Baker failed to act with reasonable diligence and promptness, in violation of SCR 20:1.3.

In 1992 Baker consented to a private reprimand for neglecting a client's wage claim matter and failing to return any of the client's numerous telephone messages over three years.

Disciplinary proceeding against Paul R. Horvath

The Wisconsin Supreme Court has suspended the law license of Paul R. Horvath, 51, Appleton, for six months, commencing Nov. 3, 1997.

In representing an out-of-state insurance company on a collection matter, Horvath stipulated that he failed to comply with the client's reasonable requests for information and failed to explain the status of the matter to the extent reasonably necessary for the client to make informed decisions about the representation, contrary to SCR 20:1.4(a) and (b); that he failed to act with reasonable diligence and promptness on behalf of the client, contrary to SCR 20:1.3; and that he made misrepresentations to the client that he had pursued and collected on a judgment when he had not, contrary to SCR 20:8.4(c). He also failed to cooperate with BAPR's investigation, contrary to SCR 21.03(4) and 22.07(2); failed to keep client funds in a properly designated trust account, contrary to SCR 20:1.15(a) and (c); and failed to designate his client trust account as one that had interest that accrued to the Wisconsin Trust Account Foundation Inc., contrary to SCR 20:1.15(c)(1)b. Horvath had twice previously been publicly reprimanded for misconduct.

Disciplinary proceeding against Robert T. Malloy

The Wisconsin Supreme Court suspended the law license of Robert T. Malloy, 34, Milwaukee, for 90 days, commencing June 10, 1998, consecutive to a previous one-year suspension. Malloy failed to file an answer to BAPR's complaint in this proceeding and the referee granted BAPR's motion for default judgment. The suspension was based upon professional misconduct in the handling of four matters.

In the first matter, Malloy represented a client in a divorce proceeding. The divorce was granted and Malloy was ordered to prepare the findings of fact, conclusions of law and judgment of divorce. Malloy submitted an inadequate document, and it was returned to him for correction. One week later Malloy submitted another document that the divorce court returned, indicating what specific corrections needed to be made. Despite letters and phone calls from the divorce court, Malloy did not submit another document for nine months. When he did, the document was returned with specific instructions indicating what corrections were needed.

Four months later Malloy submitted another document after the divorce court had issued two orders to show cause as to why the proper documents had not been filed. This document still was inadequate. Finally, the family court commissioner made the necessary corrections and the judge signed the order.

The supreme court concluded that Malloy's failure to file correct final divorce papers for 18 months constituted failure to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

In the second matter, Malloy failed to appear in court on two criminal matters with which his client was charged. He attempted to return the $250 retainer when he tried to visit his client in prison, but was unsuccessful because he failed to make the proper visitation arrangements. Malloy subsequently sent a check to the client for the retainer, but the client returned it because he was seeking payment in a larger amount. The court concluded that Malloy's failure to appear in court on behalf of his client constituted failure to act with reasonable diligence, in violation of SCR 20:1.3, and his failure to return the client's retainer violated SCR 20:1.16(d).

In the third matter, Malloy represented a client in a civil matter. He did not respond to opposing counsel's request for admissions, second set of interrogatories and a request to produce documents. He also failed to respond to his client's inquiries about a court date and did not inform his client of a deposition date. Instead, he telephoned opposing counsel on the morning of the scheduled deposition and said he could not participate because of an emergency. He did not tell his client of the rescheduled deposition until the day preceding it. The client incurred a $250 penalty for failure to comply timely with discovery requests. The court concluded that Malloy failed to keep his client reasonably informed of the status of a civil matter, in violation of SCR 20:1.4(a).

In the fourth matter, Malloy was retained to obtain the return of a car belonging to his client's brother that was seized when his client was arrested. He failed to timely file the necessary documents, and the car was not returned. Malloy also failed to respond to more than 20 attempts by his client to contact him. The supreme court concluded that Malloy failed to act with reasonable diligence, in violation of SCR 20:1.3, and failed to reply to his client's reasonable requests for information in violation of SCR 20:1.4.

In each of these four matters, Malloy failed to respond to BAPR's requests for information and did not arrange to meet with BAPR to discuss the matters. The court concluded that Malloy's failure to respond to or arrange meetings with BAPR violated SCR 21.03(4) and SCR 22.07(2) and (3).

In determining that a 90-day suspension was the appropriate discipline, the court considered Malloy's 1994 public reprimand and his 1997 one-year suspension. The court found significant that the misconduct in three of the four matters occurred after a prior disciplinary proceeding had been commenced, noting that despite the pending proceeding, Malloy "continued to violate the Rules of Professional Conduct for Attorneys in significant and substantial degree."

In addition to the 90-day license suspension, the court ordered that Malloy pay to BAPR the costs of the disciplinary proceeding.

Disciplinary proceeding against Thomas E. Warmington

The Wisconsin Supreme Court revoked the law license of Thomas E. Warmington, 50, Brookfield, effective Oct. 1, 1997. Warmington's revocation was based upon numerous counts of misconduct involving several matters.

In one matter Warmington was retained to represent a woman on a claim for damages. Warmington reached a $15,000 settlement, which was to be paid by an initial payment of $10,100 and the remainder in $200 monthly installments. Warmington received two cashier's checks totaling $10,100 payable to himself and the client on May 1, 1996. He endorsed his name and the client's name on those checks without the client's authority. After depositing the settlement funds into his trust account, Warmington cashed numerous checks payable to himself or his law firm and within days had insufficient funds in that account to cover the amount owed to the client. By Aug. 12, 1996, only $8.24 remained of the $5,416.36 that should have been on deposit for that client alone. In August 1996 Warmington told the client that she should have her money the following week. Thereafter, Warmington did not return her numerous calls. Warmington eventually returned the client's funds to her after the client contacted BAPR.

By transferring the client's funds to his own use and endorsing her name on checks without authority, Warmington engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c). By writing checks to himself and having insufficient funds in his trust account to cover the client's portion of the settlement, Warmington failed to hold in trust funds belonging to a client, in violation of SCR 20:1.15(a). His failure to promptly deliver to the client funds to which she was entitled violated SCR 20:1.15(b), and his failure to respond to the client's calls and messages violated SCR 20:1.4(a).

In a second matter Warmington was retained in March 1996 to represent a woman in a divorce. His client was to receive $18,000 from the refinancing of the couple's house. Warmington received a check for $17,990 payable to the client only but asked the payor to make it payable jointly. He then deposited the check into his trust account, having endorsed on it his own name and that of the client, indicating that he had her power of attorney. Between the end of August 1996 and the end of the following October, Warmington wrote numerous checks payable to his law firm from his client trust account. Six days after he deposited the client's check, the balance of that account was insufficient to cover the amount owed to her. Warmington further reduced that balance to $11,750 by Oct. 2, 1996. Additionally, between Feb. 28 and March 6, 1996, Warmington's trust account was constantly overdrawn.

By transferring to his own use funds belonging to the client, Warmington engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c). Warmington violated SCR 20:1.15(b) by failing to promptly deliver to a client funds to which she was entitled and failed to hold those funds in trust, contrary to SCR 20:1.15(a).

When the client met with Warmington in September 1996, he told her he should receive her check from the refinancing any day. In fact, he had received the check a week earlier. By misrepresenting to the client that the check was in the mail, Warmington violated SCR 20:8.4(c). Warmington then failed to return eight telephone calls from the client, in violation of SCR 20:1.4(a).

On Oct. 2, 1996, the client terminated Warmington's services and retained new counsel. At that time, Warmington had not disbursed her money. On Nov. 12, 1996, Warmington told the client's new attorney that he was charging an additional fee of $1,312.50, offered to give the client a check for $16,677.50, and said that they should accept the offer that day, as the funds might not be available in the future. Warmington then gave the client a cashier's check in that amount, but the client claimed he was not entitled to the $1,312.50 he had deducted in fees. By failing to hold the disputed funds in trust, Warmington violated SCR 20:1.15(d).

After learning that successor counsel had been retained and without permission to communicate directly with the client, Warmington nonetheless faxed her a letter regarding the return of her funds, in violation of SCR 20:4.2. Throughout the progress of this matter, Warmington's wife was not an attorney in his service corporation but was designated as such in the firm name and letterhead, in violation of SCR 20:7.5(a). Additionally, BAPR discovered that Warmington failed to maintain complete trust account records, in violation of SCR 20:1.15(e).

In another matter, Warmington was retained by a woman in August 1996 to pursue a breach of contract case on behalf of her mother who was in a nursing home. The woman paid a $7,500 advance on fees. Warmington deposited the money into his client trust account and withdrew those funds the same day. Not receiving a response to her numerous telephone calls and faxes, and learning in late September that the receptionist at his office had not seen him for weeks, the woman sent Warmington a letter stating that if he was not able to handle the case, she wanted the $7,500 returned. Warmington did not respond. The woman then filed a grievance with BAPR and contacted the local police. Warmington informed the officer who contacted him that he would be calling the woman the following day, but did not.

In October 1996 the woman sent Warmington another letter demanding return of her money and the file. Warmington did not respond. He eventually telephoned the woman on Nov. 3, 1996, and said he was working on the case, but the woman told him she was no longer interested in dealing with him. The following day the woman sent another letter demanding the return of the money and asserting that she had terminated his services Oct. 9, 1996. It was not until Nov. 22, 1996, that Warmington returned the $7,500, together with the file. Warmington's failure to respond to the woman's calls and letters violated SCR 20:1.4(a). His failure to timely return an advance payment of his fee that had not been earned and the client's file violated SCR 20:1.16(d).

Between July 1995 and November 1996, Warmington failed to keep another client reasonably informed of the status of his legal matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

Another matter concerned Warmington's representation of a defendant in a paternity action. He argued a meritless statute of limitations defense at a hearing on a motion to dismiss, and he failed to supervise the preparation of an expert witness to testify, which constituted failure to provide competent representation, contrary to SCR 20:1.1. He failed to diligently pursue a motion to amend the conceptive period and failed to supervise cocounsel in collecting evidence required to support the motion, in violation of SCR 20:1.3.

Finally, Warmington failed to respond to numerous letters and telephone calls from BAPR staff regarding all of these matters. He also did not appear for an investigative interview and did not produce his client files, as directed by BAPR. After being personally served with a notice of investigative interview, he ultimately appeared at the interview but refused to give his statement under oath. Warmington's failure to cooperate with BAPR's investigations into these matters violated SCR 21.03(4) and 22.07(2).

In 1991 Warmington was publicly reprimanded for failing to communicate with the clients who had retained him to pursue a medical malpractice action, failing to inform them he had not timely filed their legal action, misrepresenting that he had filed a malpractice action, and failing to cooperate in BAPR's investigation of the matter. Warmington also was publicly reprimanded in 1995 for failing to notify a client of his receipt of the client's funds he had collected on the client's behalf, failing to deliver the funds to the client for more than two years, failing to communicate with the client and failing to cooperate with BAPR's investigation.

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