Professional Discipline

Hearing to reinstate Larry J. Barbar

A public hearing on the petition of Larry J. Barber to reinstate his law license will be held before the District 2 Professional Responsibility Committee on Feb. 17, 1998, at 6 p.m. in the Grain Exchange Room of the Mackie Building, 225 E. Michigan St., Milwaukee, Wis.

The Wisconsin Supreme Court suspended Barber's license for six months effective Aug. 7, 1995, as discipline for professional misconduct. That misconduct consisted of Barber having failed to act with reasonable diligence and promptness on behalf of two clients in two divorce proceedings and to respond to his clients' requests for information regarding those matters. Barber is required by Supreme Court Rule 22.28 to establish by clear and convincing evidence, that:

1. he desires to have his license reinstated;
2. he has not practiced law during the suspension;
3. he has complied with the terms of the disciplinary order;
4. he has maintained competence and learning in the law;
5. his conduct since the discipline has been exemplary and above reproach;
6. he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with them;
7. he can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court;
8. he has made restitution or settled all claims from persons injured or harmed by his misconduct, or in the event such restitution is not complete, his explanation of the failure or inability to do so;
9. he has indicated the proposed use of the license after reinstatement; and
10. he has fully described all business activities during the period of suspension.

Any interested person may appear at the hearing and be heard in support of or in opposition to the petition for reinstatement. Further information may be obtained from Jeananne L. Danner, Deputy Administrator, Board of Attorneys Professional Responsibility (BAPR), 611 N. Broadway, Suite 102, Milwaukee, WI 53202; (414) 227-4623.

Disciplinary proceeding against James C. Cotter

The Wisconsin Supreme Court suspended the law license of James C. Cotter, 49, Brown Deer, for one year, effective Nov. 4, 1997, pursuant to a stipulation of the parties. Cotter also was ordered to pay the cost of the disciplinary proceedings.

Cotter was arrested on three outstanding warrants for operating a vehicle after license revocation and disorderly conduct and on a bench warrant for failure to appear in a divorce matter. When arrested, Cotter possessed an operator's license in another person's name but with Cotter's picture on it, and two credit cards in the name of that person. The police also recovered an application for a duplicate of the operator's license issued in the name of that person. The person whose name appeared on the operator's license, the license application and the credit cards had not given anyone his permission to apply for a duplicate license. Cotter was charged with one count of misdemeanor forgery, which later was amended to a criminal violation of the Motor Vehicle Code - using a false name on a license application. Cotter was convicted on a guilty plea and fined $750.

The court found that Cotter's preparing, signing and presenting documentation containing false information in an application for a duplicate operator's license constituted a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer, in violation of SCR 20:8.4(b).

In 1992 the court suspended Cotter's law license for two years for personally retaining legal fees while an employee of a law office, failing to prepare and timely file personal income tax returns for five years, failing to refund a client's unearned fee and respond to her telephone calls, failing to timely file a brief in a criminal appeal and to communicate with the court following its notification that he do so, and failing to cooperate with BAPR's investigation into the appellate matter.

Reinstatement of Donald S. Eisenberg

A public hearing on the petition of Donald S. Eisenberg for reinstatement of his law license will be held before BAPR District 9 Committee on Tuesday, Jan. 20, 1998, at 7 p.m. in the Assembly Hall of the State Bar of Wisconsin, 402 W. Wilson St., Madison, Wis.

Eisenberg became licensed to practice law in 1956 and practiced in Madison. Eisenberg's law license was revoked effective Nov. 1, 1989.¹ Prior to his revocation, Eisenberg had been the subject of several other disciplinary proceedings. He was publicly reprimanded in 1965,² and in 1984 the court suspended his law license for six months.³

In 1985 Eisenberg twice was denied reinstatement of his law license because he had continued to practice law while his license was suspended.⁴ A third petition for reinstatement was withdrawn. A fourth reinstatement petition was stayed until disposition of the 1989 disciplinary proceeding. That petition was dismissed as moot following the revocation. In 1996 the Wisconsin Supreme Court denied a fifth reinstatement petition on two grounds: Eisenberg's statement on a television program in 1990 of his belief in the guilt of a former client and his failure to repay a fee to a former client whom he had represented in the presence of a conflict of interest.⁵

Eisenberg's law license was revoked based on evidence that he repeatedly misused his trust account. On Feb. 10, 1981, Eisenberg's trust account ledger showed a receipt of $2,000 on behalf of a named client. No such deposit was made. On the day the deposit allegedly was made, Eisenberg drew a $2,000 check payable to himself on the trust account. By doing so, Eisenberg made a payment to himself on behalf of one client from funds on deposit in his trust account belonging to other clients.

In May 1981 Eisenberg drew a $20,000 check on his client trust account payable to his uncle. He concealed the transaction by marking the check stub "void" and not recording the check on the trust account ledger or subtracting it from the balance on that ledger. When that check was written, the uncle had no money on deposit in the trust account. Eisenberg testified that he was lending his uncle the money. Later that month, Eisenberg deposited $20,000 into the trust account on behalf of his uncle. This transaction also was not recorded on the account ledger.

Later that month, Eisenberg made another $20,000 loan to his uncle by this means. He did so again in June 1981 in the amount of $5,000. In the latter case, Eisenberg concealed the transaction by writing on the check stub a different payee and amount than that of the actual check.

On Aug. 21, 1981, Eisenberg deposited $10,000 into the firm's trust account and listed it in the receipt book, general trust account ledger and individual trust account ledgers as attributable to another named client of the firm. Those funds were withdrawn immediately from the trust account and used to conclude a bank transaction known as a repurchase agreement. Subsequently, Eisenberg made disbursements from his trust account of about $7,300 for the named client, although that client had no funds on deposit in the trust account.

There were insufficient funds in that account to pay for the above disbursements. Later in August 1981 Eisenberg wrote a $10,000 trust account check payable to another attorney who also was representing the named client, but that withdrawal was not recorded on the trust account ledger. There were insufficient funds in the trust account to cover the check.

On Sept. 3, 1981, the trust account receipts ledger showed a $15,000 entry on behalf of one of Eisenberg's partners. Five days later, $15,000 was transferred from that account to another account, on which Eisenberg then drew a $15,000 check payable to his uncle.

During 1981 Eisenberg withdrew funds from his firm's trust account for his personal use four times, totalling $58,000. When these withdrawals were made, Eisenberg had no personal funds on deposit in the trust account. He did not record the transactions and subsequently admitted that he was illegally borrowing money from the trust account.

During 1981 Eisenberg deposited about $954,000 into the firm trust account without recording the deposit amounts on the account ledger or indicating on whose behalf they were made. He also caused almost $70,000 to be recorded in the account ledger as deposits when no such deposits had been made. Also in 1981, Eisenberg withdrew about $930,000 from the trust account without reporting those withdrawals on the account ledger or identifying the clients on whose behalf they were made.

Based on these facts, the Wisconsin Supreme Court concluded: Eisenberg violated SCR 11.05(1) by commingling funds in his client trust account and by using the funds of other clients to pay the debts of a client; he violated SCR 11.05(2) by failing to maintain and preserve complete records of client funds coming into his possession; and he violated SCR 20.04(4) by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation by attempting to conceal these transactions.

The court stated that regardless of his prior discipline for professional misconduct, the seriousness of his misuse of a client trust account and conversion of client funds warranted the revocation of Eisenberg's law license.

SCR 22.28 requires Eisenberg to show:

1. he desires to have his license reinstated;
2. he has not practiced law during the revocation;
3. he has complied fully with the terms of the order and will continue to comply with them until his license is reinstated;
4. he has maintained competence and learning in the law;
5. his conduct since the revocation has been exemplary and above reproach;
6. he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with them;
7. he can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the court;
8. he has fully complied with the requirements of SCR 22.26;
9. he indicates the proposed use of his license, if reinstated;
10. he has fully described all business activities during the revocation; and
11. he has made restitution or settled all claims from persons injured or harmed by his misconduct or, if the restitution is not complete, his explanation of his failure or inability to do so.

Eisenberg must demonstrate by clear and convincing evidence that he possesses the moral character to practice law in this state and that his resuming the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, or subversive of the public interest.

Any interested person may appear at the hearing and be heard in support of or in opposition to the petition for reinstatement. Further information may be obtained from Mary A. Ahlstrom, Board of Attorneys Professional Responsibility, 110 E. Main St., Room 410, Madison, WI 53703-3383; (608) 267-7274.

Disciplinary proceeding against John W. Gibson

On Nov. 4, 1997, the Wisconsin Supreme Court suspended the law license of John W. Gibson, 65, Madison, for 60 days, effective Dec. 8, 1997. Gibson stipulated with BAPR that the pleadings set forth a sufficient basis for discipline and that a 60-day suspension was an appropriate sanction. The supreme court adopted the facts and conclusions as stipulated by the parties.

While administratively suspended for nonpayment of State Bar dues, Gibson appeared in court on behalf of clients and practiced law, contrary to SCR 10.03(4) and (6) and 20:8.4(f).

While representing a tenant in an eviction proceeding, Gibson, in violation of SCR 20:4.1(a) and 20:8.4(c), misrepresented to the landlord that he had filed a bankruptcy petition on the tenant's behalf, causing the landlord to cancel the eviction proceeding and instruct his counsel to pursue the matter in the bankruptcy proceeding. The landlord learned that no petition had been filed and had counsel contact Gibson, who then filed a petition.

In another bankruptcy, Gibson signed pleadings affirming that, after reasonable inquiry, they were well-grounded in fact and not interposed for any improper purpose. Gibson, however, had delegated the decision of whether and when to file those pleadings to a nonlawyer employee, whom he failed to properly supervise. Gibson or his staff had the client sign blank petitions, plans and schedules that were later filled in by Gibson or his staff, and the petition was filed while Gibson was on vacation. Gibson and his staff failed to timely file a repayment plan and complete schedules. The court deemed frivolous his subsequent opposition to a motion by the bankruptcy trustee to dismiss the bankruptcy petition.

In another bankruptcy, Gibson allowed his nonlawyer employee to decide to file a petition on behalf of a client, which was done without the inclusion of a repayment plan or the necessary schedules. Gibson or his staff had the client sign blank petitions, plans and schedules, notwithstanding bankruptcy rules specifying that the signature of a party certifies that the party has read the document and that it is well-grounded in fact. A repayment plan was not timely filed, and the bankruptcy court ruled that Gibson's objection to the bankruptcy trustee's motion to dismiss was frivolous.

Gibson's conduct in the latter two matters violated SCR 20:5.3(b) and (c), which pertain to supervision of nonlawyer assistants. Gibson's nonmeritorious opposition of the trustee's dismissal motions violated SCR 20:3.1(a)(1) and (2). Gibson was found to have violated SCR 20:1.1, which requires competent representation. In completing documents already signed by clients, Gibson was found to have violated SCR 20:8.4(c).

Gibson's license was suspended for 90 days in 1985 for misconduct unlike that in the present case.

Public reprimand of John M. Langer

On Oct. 21, 1997, the Wisconsin Supreme Court imposed a public reprimand upon the law license of John M. Langer, 66, Baraboo. The court also ordered that Langer be personally responsible for any tax-related liabilities incurred by his client, an estate, which resulted from his misconduct; and further ordered that Langer pay the costs of the proceeding.

Langer was retained in 1991 to probate an estate. After a farm was sold and some distributions were made in 1993, Langer wrote to the personal representative that he should be in a position to close the estate shortly. The estate was not concluded, which led to a 1995 meeting between Langer and the personal representative; Langer said the final papers would be ready and mailed within several days. Ultimately, the personal representative filed a grievance with BAPR in connection with the nonclosure of the estate.

Langer was unresponsive to BAPR inquiries in 1995 and early 1996. The probate court issued several separate orders to show cause during 1996, at which Langer indicated he was having secretarial problems and that he anticipated to promptly close the estate. Meanwhile, BAPR maintained its efforts toward Langer's closure of the estate. When the disciplinary complaint was filed, however, more than five and a half years after the decedent's death, the estate remained open.

The court adopted the referee's conclusion that Langer's failure to complete the probate of the estate and his neglect of it from October 1993 to October 1997 constituted a failure to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3; and that Langer's failure to respond to BAPR inquiries and furnish any responsive information or materials and to respond to the district committee investigator constituted a failure to cooperate with BAPR's investigation, in violation of SCR 21.03(4) and 22.07(2) and (3).

Langer previously had received a private reprimand in 1992 for failing to cooperate with a BAPR investigation.

Disciplinary proceeding against Patrick B. Sheehan

On Oct. 20, 1997, the Wisconsin Supreme Court granted BAPR's motion to temporarily suspend the law license of Patrick B. Sheehan, 55, Beloit, pending the outcome of the disciplinary proceeding pending against him. In June 1997 BAPR filed the motion for temporary suspension contemporaneously with a complaint that alleges Sheehan fraudulently induced a client to pay him $8,000 as a partial commission for having found a buyer for the client's business and improperly handled that client's funds, used another client's funds placed in his trust account for paying state and federal corporate and personal income taxes and a professional's fee to make payments to himself and to other clients, and disbursed a portion of another client's personal injury settlement to other clients and himself. Additionally, BAPR asserted that Sheehan had failed to keep complete records of his trust accounts and the property of clients in those accounts.

Sheehan filed an affidavit opposing the motion for temporary suspension in which he did not address the allegations of the misuse of client funds held in trust but merely asserted that he had paid the clients the funds to which he believed they were entitled. Sheehan has no prior discipline record.

Endnotes

¹Disciplinary Proceeding Against Eisenberg, 152 Wis. 2d 91, 447 N.W.2d 54 (1989).

²State v. Eisenberg, 29 Wis. 2d 233, 138 N.W.2d 235 (1965).

³Disciplinary Proceeding Against Eisenberg, 117 Wis. 2d 332, 344 N.W.2d 169 (1984).

⁴Disciplinary Proceeding Against Eisenberg, 122 Wis. 2d 627, 363 N.W.2d 430(1985); 126 Wis. 2d 435, 377 N.W.2d 160 (1985).

⁵Disciplinary Proceeding Against Eisenberg, 206 Wis. 2d 263, 556 N.W.2d 749(1996).

Wisconsin Lawyer