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    Wisconsin Lawyer
    June 01, 2001

    Wisconsin Lawyer June 2001: Private Reprimand Summaries

    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 OLR imposed private reprimands. The summaries do not disclose information identifying the reprimanded attorneys. The following summaries of selected private reprimands, imposed by 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).

    Lawyer Discipline

    Failure to Hold Disputed Funds in Trust Until Dispute Resolved

    Violation of SCR 20:1.15(d) and the Standard of Conduct in Marine

    A man hired the attorney to represent him in a divorce and paid a nonrefundable retainer fee of $1,150. The fee agreement stated that a final fee could not be determined at that time, but it was estimated to be in the amount of $1,150, plus disbursements. The final fee was to be based on hourly fees for court and noncourt time.

    During an interim hearing, the attorney told the client that the final fee would exceed the retainer, and the client said he would need time to pay. The client states that the attorney agreed to accept monthly payments, which the attorney denies.

    The final hearing was held. The divorce judgment provided for settlement proceeds to be paid to the client, subject to payment of certain bills. Each party was to bear his or her own legal expenses. The attorney received the client's settlement of more than $7,500 and deposited the funds into his trust account. As ordered in the judgment, the attorney paid a debt to a state agency, leaving a balance of $4,043.65 in the trust account.

    Two days later, the attorney delivered $2,043.65 to the client and retained $2,000 in the trust account. The client demanded the remainder of the funds, but the attorney refused. The client filed a grievance against the attorney.

    Unaware of the grievance, the attorney delivered $1,000 to the client and paid himself the remaining $1,000. A month later, the attorney prepared a final bill, showing that the client owed an additional $1,432.75.

    The Office of Lawyer Regulation (OLR) concluded that in paying himself from his trust account without the knowledge or consent of his client, the attorney violated the court's decision in Disciplinary Proceedings Against Marine, 82 Wis. 2d 602, 264 N.W.2d 285 (1978), and SCR 20:1.15(d). OLR issued a private reprimand to the attorney with the condition that he complete a continuing legal education course regarding trust account procedures within six months. The attorney received a private reprimand in 1996 for a similar trust account violation.

    Competence, Violation of Attorney's Oath, and Conflict of Interest

    Violations of SCR 20:1.1, SCR 40.15, and SCR 20:1.7(b)

    A lawyer represented a woman and her minor children who had moved to Wisconsin after the woman and the children's father had divorced in another state. The woman, who had been ordered by the other state to bring the children there for visitation with their father, had become concerned that the children were at risk of sexual abuse during such visitations.

    Acting on the lawyer's advice, the woman did not comply with the court's order to produce the children. The woman was found in contempt. The court again ordered that the children be produced, and the lawyer again advised against it. For a second time, the court found the woman in contempt. Based in part on the woman's refusal to abide by court orders, the father eventually prevailed on a motion for a change of custody.

    OLR concluded that in advising the woman not to comply with the court orders, the lawyer failed to provide competent representation, contrary to SCR 20:1.1, and failed to maintain the respect due to courts of justice and judicial officers, contrary to SCR 40.15. OLR further concluded that in representing both the woman and her children, the lawyer violated SCR 20:1.7(b), which proscribes a representation of one client if the representation may be materially limited by the lawyer's responsibilities to another client, without consultation and written consent from each.

    Lack of Diligence and Failure to Promptly Disburse Funds Held in Trust to Which Another was Entitled

    Violations of SCR 20:1.3 and SCR 20:1.15(b)

    An attorney was a longtime friend of a husband and wife. The husband died in 1991, and the wife died in December 1995. The attorney was named personal representative of the wife's estate and trustee of the couple's living trust, which had been established in 1986. The wife devised her residuary estate to the trust. The trust provided that after the last grantor died, the trustee shall divide the remaining balance of the trust assets into separate trusts for the couple's daughter, her brother, and the brother's two children.

    In early 1996, the attorney filed a petition for probate in the Cook County, Ill., circuit court on behalf of the estate, and domiciliary letters were issued on April 3, 1996. The attorney was identified as petitioner and attorney for petitioner. Beginning in early 1996, the daughter, who is a resident of Pennsylvania, began attempting to obtain information about the estate from the attorney. When the daughter began having difficulties, she retained local counsel to represent her interests in the matter. The attorney then retained counsel to communicate with the daughter's counsel. The inventory was filed approximately 18 months after the opening of the estate.

    The trust document provided that the trust assets were to be distributed on Dec. 6, 1998; however, distributions were not made until several months later. The trust document also provided that all trust income should be distributed at least annually, and in April 1998, the attorney forwarded to the daughter a Schedule K-1 that listed income the daughter had to include on her 1997 taxes. However, the daughter had never received the income because the attorney had failed to make the annual distributions. As of December 1999, almost four years after the petition for probate had been filed, the estate was still open.

    OLR concluded that, by failing to close a fairly simple estate for four years, the attorney failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. OLR also found, that by failing to make annual distributions of the trust income and failing to promptly distribute the trust's assets as of Dec. 6, 1998, the attorney failed to promptly deliver to a third person funds that the third person was entitled to receive, in violation of SCR 20:1.15(b).

    Lack of Competence and Failure to Communicate in a Plaintiff's Legal Malpractice Action

    Violations of SCR 20:1.1 and SCR 20:1.4(b)

    An attorney was retained to represent a woman in a legal malpractice action against four attorneys. At that time, the attorney had been a member of the bar for less than one year. The woman had already filed a complaint pro se, and two of the defendants had filed motions to dismiss the complaint for failure to state a cause of action.

    When the attorney was retained, there were five days remaining before the six-month deadline for amending the complaint as of right. The client and the attorney disagreed as to whether the client informed the attorney of the urgent necessity for filing an amended complaint in that short period of time. In any event, the attorney did not amend the complaint before the deadline, but within a few weeks was on notice of the motions for dismissal. Despite the notice, the attorney did not file a motion with the court for permission to amend the complaint.

    On the day of the hearing, the attorney filed a brief arguing against granting the motions and for allowing amendment of the complaint. The court granted the motions for dismissal as to the two attorneys, citing in its decision the failure of the attorney to file a motion requesting permission of the court to amend the complaint.

    As to the two remaining defendants, the court subsequently issued a scheduling order that included a deadline for filing witness lists. Although expert witness testimony was necessary, the attorney states that the client balked at the expense and questioned the need for them. As the deadline approached, the attorney had not located less expensive experts and had not persuaded the client to hire experts.

    The attorney did not file any witness list by the deadline, not even a list of the names of fact witnesses provided by the client. Opposing counsel inquired about the list, and the attorney asked for "a couple of days to respond." However, the attorney did not file a witness list, did not request an extension from the court, and did not take other action. The attorney did not advise the client that no witness list had been filed and had not explained the matter sufficiently so that the client understood the consequences of not naming experts. Opposing counsel filed a motion to bar the plaintiff from calling any witnesses at trial and for summary judgment because the case could not be proven without expert witnesses, which the court granted. OLR took into consideration that the attorney was very inexperienced and had no prior discipline.

    Lack of Diligence, Failure to Inform Client, and Conflict of Interest

    Violations of SCR 20:1.3, SCR 20:1.4(a), SCR 20:1.4(b), and SCR 20:1.7(b)

    A lawyer was retained by a minor teenager and her parents to represent them regarding injuries the young woman had sustained. The lawyer developed a romantic interest in the young woman that he expressed by sending her personal notes, offering her small gifts and the use of his jeep, and inviting her to travel with him.

    The young woman disclosed the lawyer's conduct to her aunt, with whom she was residing. The aunt immediately terminated the lawyer's representation of the young woman. Thereafter, the lawyer failed to notify the young woman's parents that he had ceased representing her and failed to take any further legal action on the parents' behalf.

    The Board of Attorneys Professional Responsibility (BAPR) concluded that in continuing to represent the young woman after he had become aware that the representation was materially limited by his romantic interest in her, the lawyer violated SCR 20:1.7(b), which provides that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's own interests unless the lawyer reasonably believes the representation will not be adversely affected and the client consents in writing after consultation. BAPR further concluded that subsequent to his termination by the aunt, the lawyer failed to take any action with regard to his representation of the young woman's parents, contrary to SCR 20:1.3, which requires a lawyer to act with reasonable diligence during a representation. Finally, BAPR concluded that in failing to inform the young woman's parents about his termination and explain their options to them, the lawyer violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter, and SCR 20:1.4(b), which requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

    The respondent was privately reprimanded in 1997 for dissimilar conduct.

     


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