Lawyer Discipline
The Wisconsin Supreme Court allows the Board of Attorneys
Professional Responsibility (BAPR) to publish for educational purposes
in an official State Bar publication a summary of facts and professional
conduct rule violations in matters in which BAPR has imposed private
reprimands. The summaries do not disclose information identifying the
reprimanded attorneys.
The following summaries of selected private reprimands are printed to
help attorneys avoid similar misconduct problems. Some of the summaries
indicate violations of the rules that were in effect prior to Jan. 1,
1988. The current rules proscribe the same types of misconduct.
Lack of Diligence, Failure to Communicate in Criminal Appeal
Violations of SCR 20:1.3 and 20:1.4(a)
In late November 1995, the State Public Defender's Office appointed
an attorney to represent a man regarding the appeal of a first degree
intentional homicide conviction. For more than 36 months the attorney
failed to meet or communicate in any way with the client, failed to
contact trial counsel, failed to obtain police reports in the case, and
failed to determine whether there was a basis to appeal or seek
postconviction relief. The attorney thereby failed to act with
reasonable diligence and promptness in representing a client, in
violation of SCR
20:1.3. The attorney also failed to respond to seven written
inquiries from the client regarding the status of his case, thereby
failing to keep a client reasonably informed about the status of a
matter and promptly complying with reasonable requests for information,
in violation of SCR
20:1.4(a).
The misconduct was mitigated by the fact that the attorney had no
prior discipline, and the matter appeared to be an isolated instance of
misconduct. In addition, there did not appear to be a meritorious basis
upon which to appeal or seek postconviction relief; therefore, the harm
was limited to the frustrations caused by unreasonable delay. The
misconduct was aggravated by the fact that the lack of diligence
continued for a long time, despite repeated requests from the client for
status information.
Neglect, Failure to Communicate
Violations of SCR 20:1.3 and 20:1.4(a)
From Aug. 19, 1995 to Sept. 28, 1995, a man was held in custody on a
probation hold that previously had been stayed. Shortly thereafter, the
man retained an attorney to represent him regarding a false imprisonment
claim. In October 1995 the attorney filed a notice of claim with the
Office of the Attorney General. In January 1996 the attorney advised the
man that the attorney general denied the claim, necessitating the filing
of a lawsuit. The attorney drafted a complaint but never filed it. While
the man believed that a lawsuit was pending and was periodically
checking on the progress of the case, the attorney failed to diligently
pursue the matter, in violation of SCR
20:1.3. The attorney also violated SCR
20:1.4(a) by failing to keep the man apprised of the status of the
matter and failing to inform him that a lawsuit, in fact, had not been
filed.
The attorney had no prior discipline.
Neglect and Improper Termination
Violations of SCR 20:1.3 and 20:1.16(d)
A client was slightly injured in an automobile accident in Illinois.
The client originally retained a Wisconsin law firm, but the firm
subsequently referred the matter to an attorney who was licensed to
practice law in both Wisconsin and Illinois. That attorney prepared and
filed a complaint in Illinois, but the summons and complaint were never
served on the defendants. A year after the complaint was filed, the
court issued a notice stating that there appeared to be no service and
that if counsel failed to appear at a status call, the case would be
dismissed. The attorney did not notify the client nor appear, and the
case was dismissed. The attorney then referred the case back to the
Wisconsin firm "for consideration of how best to advise the client."
BAPR found that the attorney's failure to pursue the client's case
constituted a failure to act with reasonable promptness and diligence,
contrary to SCR
20:1.3. BAPR also concluded that the attorney's termination of the
representation without taking steps to the extent reasonably practicable
to protect the client's interests was a violation of SCR
20:1.16(d). The attorney had not been previously disciplined.
Failure to Hold Money in Trust, Act with Reasonable Diligence and
Promptness, and Keep a Client Reasonably Informed
Violations of SCR 20:1.3, 20:1.4(a), and
20:1.15(d)
In one matter during 1994, an attorney drafted a will for a client
and assisted the client with estate planning advice and services. Due to
the client's failing health, the attorney requested that the client give
him $7,000 prior to the client's death in order to fund bequests to the
client's second wife and to a church. The client gave the attorney a
$7,000 check, and the funds were deposited into the attorney's trust
account. The attorney then withdrew $150 in fees from funds on deposit
for the client's estate without notifying the client or his son. Shortly
thereafter, the client died. The attorney again withdrew $850 in fees
out of the estate funds on deposit in his trust account without
obtaining consent to the withdrawal from the deceased client's son.
BAPR determined that in paying his fees from the funds held in trust
for the estate, without the client's son's permission, the attorney
violated SCR
20:1.15(d).
With regard to the second matter, on or about April 12, 1995, a
collection agency retained the attorney to attempt to collect a debt
owed by one of its clients. Between June and November 1995, the
collection agency sent the attorney several letters and made a telephone
call to his office inquiring as to the status of its case. After the
attorney failed to respond, the collection agency terminated the
attorney's services.
BAPR concluded that in failing over nine months to collect a debt on
behalf of the collection agency, the attorney failed to act with
reasonable diligence and promptness in representing a client, contrary
to SCR
20:1.3. BAPR also determined that in failing to respond to the
collection agency's inquiries regarding the status of its case and in
failing to inform the agency in the fall of 1995 that its account might
be uncollectible, the attorney failed to keep a client reasonably
informed about the status of a matter and failed to promptly comply with
reasonable requests for information, contrary to SCR
20:1.4(a).
The attorney had no prior discipline.
Failure to Abide by Client's Decision
Violation of SCR 20:1.2(a)
An attorney represented the mother in a paternity proceeding.
Although agreement was reached between the parties on several issues,
there remained disputes over the periods of placement for the child and
the amount of child support the father would pay, and the matter was set
for trial on Dec. 15, 1997. The parties met to try to reach an
agreement, and opposing counsel drafted a proposed stipulation, which
was circulated among the parties on Dec. 13, 1997. On Dec. 14, 1997, the
attorney signed the stipulation, clearly indicating that she was signing
on her client's behalf, and faxed it back to opposing counsel. While the
attorney believed that she had implied authorization from her client to
sign the stipulation, the attorney did not have the client's express
authorization to do so. About three weeks later, the attorney mailed a
copy of the stipulation to her client. The client later retained new
counsel and argued in court against some of the terms of the stipulation
that the attorney signed on her behalf. BAPR found that the attorney
violated SCR
20:1.2(a) by failing to obtain the client's express consent before
signing the stipulation. The attorney had been privately reprimanded
twice previously.
Communication with Person Represented by Counsel
Violation of SCR 20:4.2
In the fall of 1997 criminal charges were filed against three
individuals for their alleged roles in a burglary. One of the
individuals, a woman, retained private counsel. A settlement conference
between the woman's counsel and the district attorney was held, but
settlement negotiations were unsuccessful and the case proceeded.
During early 1998 the district attorney subpoenaed the woman to give
testimony at the preliminary hearing scheduled for later in the month
involving one of the codefendants. The subpoena was served directly on
the woman, and the district attorney did not notify the woman's counsel
regarding the service of the subpoena on his client.
At the preliminary hearing, unbeknownst to the woman's counsel, the
district attorney examined the woman under oath regarding various
aspects of the burglary. At the time of the hearing, the woman was still
represented by counsel and her own criminal matter was still
pending.
BAPR concluded that in failing to notify the woman's counsel of his
intent to question the woman on direct examination at the preliminary
hearing in a related matter, and in questioning the woman at the hearing
without the woman's counsel being present, the attorney violated SCR
20:4.2, which provides that "[I]n representing a client, a lawyer
shall not communicate about the subject of the representation with a
party the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is
authorized by law to do so."
The attorney had no prior disciplinary history.
Failure to Comply with Information Requests and Refund Unearned
Fee
Violations of SCR 20:1.4(a) and 20:1.16(d)
In December 1996 a man retained and paid an attorney a flat fee of
$5,000 to represent him regarding the appeal of a drug conviction. The
man also wanted the attorney to seek his release on bond, pending the
outcome of the appeal. The attorney never filed a motion for the man's
release on bond, and failed to respond to four letters from him
requesting information about the status of the case. Between December
1996 and April 1997, the attorney attempted to determine how to best
approach the appeal. However, in late March 1997 the client terminated
the attorney's services, requested that the file be turned over to new
counsel, and asked for a full refund. At that point, the attorney had
not yet determined what to do.
Although the file was promptly turned over to successor counsel, the
attorney contended that 50 to 80 hours had been spent on the case, and
that the client therefore was not entitled to a refund. Despite the
alleged number of hours, no substantive pleadings had been filed, and no
usable work product had been produced. The attorney's failure to respond
to four letters from the client constitutes a failure to promptly comply
with reasonable requests for information, in violation of SCR
20:1.4(a), and the failure to refund the unearned portion of the
retainer fee violates SCR
20:1.16(d). The misconduct was mitigated by the attorney's lack of
prior discipline and the existence of some serious personal problems at
the time of the misconduct.
In addition to the reprimand, BAPR required the attorney to seek fee
arbitration and to pay all of the associated costs. While arbitration
was initiated and the costs paid as required, the matter ultimately was
resolved by an agreement whereby the attorney refunded $1,500 of the
$5,000 fee to the client.
Sexual Relations with Client
Violation of SCR 20:1.8(k)(2)
An attorney represented a woman in a divorce. Approximately 10 days
before the final hearing, the attorney and the woman engaged in one
incident of consensual sexual relations. They did not see each other
again until the day of the final hearing. Following the hearing, the
attorney gave the woman a letter stating that he was terminating the
legal representation and that the attorney was passing the file to his
partner with the intention that the attorney and the woman would begin a
social relationship. For the next three months, the attorney and the
woman engaged in a consensual sexual relationship while the attorney's
partner signed all correspondence in the woman's case. The attorney and
the woman subsequently ended the sexual relationship, and the attorney
resumed the woman's legal representation in post-judgment issues.
BAPR concluded that the attorney violated SCR
20:1.8(k)(2) by engaging in sexual relations with the client prior
to the trial, when the attorney and the client did not have a sexual
relationship prior to the establishment of their attorney-client
relationship. The attorney had no prior disciplinary history.
Conflict of Interest
Violations of SCR 20:1.7(b) and 20:1.9(a)
An attorney negotiated a divorce settlement for a client under the
terms of which the client's spouse was to be responsible for the payment
of a certain debt to Creditor A. The spouse, however, failed to pay that
bill.
The attorney subsequently represented Creditor A in a collection
action against both his former client and her former spouse. The
attorney consulted with neither his former client nor Creditor A prior
to undertaking the collection, and the attorney obtained written consent
to the representation from neither.
BAPR determined that the attorney's representation of Creditor A in
seeking to collect payment against his former client was substantially
related to his former representation of that client in the divorce in
which responsibility for Creditor A's bill had been assigned solely to
the client's former spouse. BAPR concluded that in undertaking the
representation of Creditor A without obtaining the former client's
written consent after consultation, the attorney violated SCR
20:1.9(a), which proscribes representation of a person in a
substantially related matter in which that person's interests are
materially adverse to the interests of a former client, unless the
former client gives written consent after consultation.
BAPR further concluded that by failing to disclose to Creditor A his
former representation of one of the debtors and in failing to obtain
Creditor A's written consent to the representation, the attorney
violated SCR 20:1.7(b), which proscribes representation of a client
where the representation may be materially limited by the lawyer's
responsibilities to another client or a third person, unless the lawyer
obtains written consent after consultation. The attorney had previously
received both a private and a public reprimand.
Failure to Safeguard and Promptly Return Property
Violations of SCR 20:1.15(a) and (b)
An attorney represented a woman's fiancé regarding state drug
charges. In June 1998 the attorney was given possession of a 1986
Cadillac on behalf of the client. He was to try to get an estimate on
the car so that the client could sell it, if necessary, to pay the
attorney's legal fee. The attorney drove the car to his girlfriend's
house in the Madison area where it broke down. From late June until the
filing of her grievance in September, the woman attempted to contact the
attorney regarding the return of the vehicle. The attorney did not have
the car returned to Milwaukee until Sept. 18, 1998, and did not inform
the woman or the client that it was at a Milwaukee garage until Oct. 18,
1998. The woman then paid to have the car towed from the garage to her
home. Additionally, the attorney received a parking ticket on the car
that he did not pay until after the matter was referred to the District
Professional Responsibility Committee, at the committee investigator's
prompting. BAPR found that by taking and leaving the car in the Madison
area and failing to return the car for more than four months, the
attorney failed to safeguard the vehicle and timely return the vehicle
on request, in violation of SCR
20:1.15(a) and (b). While the misconduct was relatively minor in
nature, the attorney had three prior private reprimands.
Wisconsin
Lawyer
