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    Lawyer Discipline

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 75, No. 10, October 2002

    Lawyer Discipline

    The Office of Lawyer Regulation (formerly known as the Board of Attorneys Professional Responsibility), an agency of the Wisconsin Supreme Court and component of the lawyer regulation system, assists the court in carrying out its constitutional responsibility to supervise the practice of law and protect the public from misconduct by persons practicing law in Wisconsin. The Office of Lawyer Regulation has offices located at Suite 315, 110 E. Main St., Madison, WI 53703, and Suite 300, 342 N. Water St., Milwaukee, WI 53202. Toll-free telephone: (877) 315-6941.

    Public reprimand of Stephen M. Compton

    The Office of Lawyer Regulation (OLR) and Stephen M. Compton, 37, Delavan, entered into an agreement imposing a public reprimand, pursuant to SCR 22.09(1). A referee appointed by the Wisconsin Supreme Court approved the agreement and issued the public reprimand on July 26, 2002, in accordance with SCR 22.09(3).

    On two separate occasions in 1998, Compton falsely recorded time indicating that he worked on a contingency fee case in Madison, Wis. The alleged work involved reviewing documents at a secured building that required a security card to enter. In addition, Compton obtained from his firm reimbursement of $88 for false mileage, parking, and lunch expenses associated with these false time entries.

    Later, Compton's supervising partner questioned Compton about why his time records showed him working on Nov. 15, 1998, but that the security entry sheet did not show Compton using his security card to enter the building that day. Compton misrepresented that he had lost his card and that another associate had let him into the building. After this conversation, Compton asked the other associate to lie for him and corroborate that he had worked in Madison at the time in question. The other associate did not agree to do so and advised Compton to tell his supervising attorney the truth.

    Later that day, Compton told his supervising attorney that the time entry for Nov. 15, 1998, was false, one other entry was false, and the mileage, parking, and lunch expenses associated with these entries were false. The only explanation for his conduct Compton provided was that he wanted to be the associate with the highest billable hours. Compton reimbursed the firm for the $88 in false expenses and reported the matter to the Board of Attorneys Professional Responsibility (BAPR).

    By falsifying time records, obtaining reimbursement for expenses not actually incurred, making misrepresentations regarding the same to his supervising attorney, and attempting to have another attorney corroborate these misrepresentations, Compton engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c).

    Hearing to reinstate John F. Kerscher

    On Nov. 25, 2002, at 9 a.m., a public hearing will be held before Referee Lance Grady in Conference Room B of the Manitowoc Administrative Bldg., 1110 S. 9th St., Manitowoc, on the petition of John F. Kerscher, Manitowoc, who formerly practiced in Racine, to reinstate his Wisconsin law license. Any interested person may appear at the hearing and be heard in support of or in opposition to the petition.

    On March 9, 2001, the Wisconsin Supreme Court indefinitely suspended Kerscher's law license due to his medical incapacity. That suspension resulted from Kerscher's voluntary petition for suspension and his acknowledgment that he could not successfully defend against medical incapacity allegations filed by the OLR.

    Kerscher has been barred from practicing law since he was found to be medically incapacitated by the Racine County Circuit Court in April 1996. He was convicted of OWI six times between 1995 and 2001. He also failed to comply with conditions designed to allow BAPR/OLR to monitor his ability to maintain sobriety.

    As to reinstatement, Kerscher is required by SCR 22.36 to show by clear, satisfactory, and convincing evidence that his medical incapacity has been removed and that he is fit to resume the practice of law, with or without conditions.

    Further information may be obtained from OLR Investigator Jennifer K. Henzl-McVey, 342 N. Water St., Suite 300, Milwaukee, WI 53202, (414) 227-4623; or from OLR Litigation Counsel William J. Weigel, 110 E. Main St., Suite 315, Madison, WI 53703, (877) 315-6941 (toll free).

    Denial of reinstatement of Leslie J. Webster

    In a decision filed July 11, 2002, the Wisconsin Supreme Court denied the reinstatement petition of Leslie J. Webster, 48, Ellsworth. Webster's law license was suspended on Jan. 21, 1998, for two years, following his felony conviction in federal court on a charge of aiding and abetting the fraudulent concealment of a debtor's property from a bankruptcy trustee. Webster was incarcerated as a result of that conviction from Dec. 18, 1997, until Jan. 15, 1999.

    In the reinstatement case, Webster appealed from the report of the referee, who concluded that Webster had not satisfied his burden under SCR 22.31 to demonstrate that he has the moral character to practice law in this state, that his resumption of the practice of law would not be detrimental to the administration of justice or subversive of the public interest, and that he has complied fully with the terms of his suspension and the requirements of SCR 22.26. The referee had determined that Webster failed to notify all clients whose funds he held in trust of his suspension, and that Webster practiced law during his suspension. On appeal, the supreme court stated:

    "We believe that Webster's activities during his suspension demonstrate that he either failed to comprehend what was expected of him in order to obtain reinstatement or that he knew full well what was required but chose to, as the referee described it, 'play fast and loose' with the rules [and] to 'cut corners' when [he] deemed it suitable to his purpose. The former raises serious questions about Webster's competence to resume the practice of law in this state and the latter raises just as serious questions about his fitness to practice law."

    Pursuant to SCR 22.33(4), Webster is eligible to petition for reinstatement nine months after the court's July 11, 2002, order denying reinstatement.

    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).

    Private Reprimand Summaries

    Failure to Act with Reasonable Diligence; Failure to Communicate

    Violations of SCR 20:1.3, 20:1.4(a)

    On Feb. 20, 1997, a client retained an attorney to represent her in a claim against a pharmacy. The pharmacy had mistakenly given her the wrong prescription, causing the client to feel ill for a few days. The client, however, was not hospitalized and did not suffer any permanent damages. At the attorney's office, the client signed a fee agreement and medical authorizations. Over the next three years, the client telephoned the attorney several times, but she was unable to ascertain what action the attorney had taken on her behalf.

    The attorney never communicated with the client's health care providers or attempted to obtain medical information regarding the client's claim. It was only on Feb. 2, 2000, that the pharmacy received its first communication from the attorney, who was attempting to resolve the matter before the three-year statute of limitation expired. The attorney, however, was unable to negotiate a settlement with the pharmacy. The attorney neither withdrew from the representation nor timely filed a lawsuit on the client's behalf.

    By failing to take action to further the client's claim or to initiate negotiations with the pharmacy for almost three years and by failing to settle the claim or file suit within the statute of limitation, the attorney failed to act with reasonable diligence in representing the client in violation of SCR 20:1.3. In addition, by failing to respond to most of the client's telephone calls, by failing for nearly three years to keep the client adequately informed about the status of a matter, and by failing to advise the client that the statute of limitation had run until on or after the expiration date, the attorney failed to keep the client reasonably informed about the status of a matter and promptly comply with reasonable requests for information in violation of SCR 20:1.4(a). The attorney had no prior discipline.

    Failure to Act with Reasonable Diligence; Failure to Communicate Fee Rate; Engaging in Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

    Violations of SCR 20:1.3, 20:1.5(b), 20:8.4(c)

    A man was convicted in Wisconsin on Dec. 27, 1989, and Oct. 17, 1990, of armed robbery, burglary, theft of a firearm, and bail jumping. The man was sentenced to 63 years in the Wisconsin state prison system. In 1994, the man's parents retained an attorney to look into whether there was any federal post-conviction relief available to their son. The man's appeals at the state level had been lost and his other state-conviction remedies exhausted. The attorney informed the man that the likelihood of any relief was slim, but since the family wished to proceed, the attorney agreed to look into whatever relief might be available to the man.

    By letter dated May 31, 1995, the attorney notified the man that he would undertake a federal habeas corpus and state clemency representation for the man for a fee of $7,500. The attorney also indicated in the letter that there could be additional costs of approximately $2,500. There was no mention of an hourly rate in the attorney's letter or any other indication that the matter would be billed on any basis other than a flat fee. Consistent with the flat fee agreement, the man's mother delivered $7,500 to the attorney's firm with additional fees, and the total funds delivered ultimately came to $17,000.

    By letter dated June 20, 1996, the attorney's office informed the man that the attorney would be changing the basis for fees to hourly rates broken down as follows: $325 per hour for the attorney's services, $185 per hour for associate's services, and $80 per hour for paralegal and investigator services. After learning about the hourly rate, the man's mother telephoned the attorney and informed him that he had agreed to look into the federal habeas corpus matter for her son for a fixed fee and she was expecting the attorney to honor that agreement.

    By letter dated Aug. 5, 1996, the man's mother informed the attorney that she thought there were some changes being proposed in the federal writ of habeas corpus law and requested that the attorney file the petition as soon as possible before the new law was enacted.

    Sometime after Nov. 1, 1996, the man's mother met with the attorney regarding the status of the case. During that meeting, the man's mother stated that the attorney told her that he had filed a "Notice of Intent" with the district court and that he would be filing the federal writ of habeas corpus within a few weeks before the new laws concerning habeas corpus would go into effect on April 23, 1997.

    By letter dated March 4, 1997, the attorney sent a copy of a draft of the petition of habeas corpus to the man, and requested that he review the petition and contact the attorney before the end of March with any thoughts or suggestions. Both the man and his mother reviewed the draft petition, sent the attorney a letter thanking him for his work, and again reminded the attorney that the writ needed to be filed before April 23, 1997.

    The next communication that the man received from the attorney occurred in a letter dated May 1, 1997, in which the attorney enclosed a form entitled "Petition." The attorney requested that the man execute the petition and mail it back as soon as possible. On or about May 14, 1997, the man and his mother received a copy of the petition of habeas corpus that had been filed with the court.

    By letter dated July 2, 1997, the attorney notified the man that the U.S. District Court for the Eastern District of Wisconsin had dismissed the man's habeas corpus petition without a hearing. The attorney also indicated that the only remaining remedy was executive clemency from the governor of Wisconsin, which seemed unlikely.

    After receiving the attorney's letter of July 2, 1997, the man called the attorney to obtain a copy of the court's decision dismissing the habeas corpus petition. On July 14, 1997, the man received a copy of the court's decision and learned that the court had dismissed the habeas corpus petition due to its untimely filing. On July 18, 1997, the man wrote to the attorney indicating that he was holding him responsible for the court's denial of the petition. The attorney replied by letter dated Aug. 5, 1997, denying that his office had done anything wrong. The man subsequently filed a motion for reconsideration asserting that he had no control over the attorney's untimely filing of the petition. The district court granted the man's motion for reconsideration, tolled the time limits, and eventually denied the petition on substantive grounds.

    By letter dated Dec. 13, 2000, the attorney wrote to the man and apologized for having missed the filing deadline for the writ of habeas corpus, and he refunded the entire $17,000 to the man's parents during 2001.

    In failing to file the writ of habeas corpus by the requisite deadline, the attorney failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

    When initially informing the man of the dismissal of the habeas corpus petition by purposely concealing that the basis of the dismissal was the petition's untimely filing, and in initially denying that his conduct resulted in the petition's dismissal, when the court's order stated that the only basis for the dismissal was the untimely filing, the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c).

    Having agreed to provide representation to the man on a flat fee basis and in making a unilateral declaration of hourly fee rates and having not engaged in prior consultation with the man on that subject, the attorney violated SCR 20:1.5(b), which states, "When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation."

    The attorney had no prior disciplinary history.

    Failing to Respond to the State Public Defender's Office

    Violation of SCR 20:1.3

    In 1999 an attorney was appointed by the State Public Defender's (SPD) office to represent a woman on felony charges. On Nov. 30, 1999, the day of the woman's sentencing, the attorney and the woman executed the right to appeal form, and the woman checked the box indicating that she was undecided about pursuing post-conviction relief, but understood that her attorney must be informed of her decision within 20 days of the sentencing. The woman did not contact the attorney until Dec. 29, 1999, when she called the attorney and indicated that she wanted to file a notice of intent to pursue post-conviction relief. Despite the lapse of the 20-day period, the attorney filed a notice of intent on Dec. 29, 1999, and forwarded a copy to the SPD's office.

    On Jan. 7, 2000, the SPD's office sent the attorney a letter informing him that, since the filing of the notice of intent was beyond the 20-day period, it was necessary to file a motion to extend the time for filing the notice of intent. The letter also informed the attorney that the SPD's office could not appoint appellate counsel for the woman until the matter was resolved. The attorney did not respond to this letter, file a motion to extend time, or take any other actions on the woman's behalf. The SPD's office sent letters to the attorney in 2000 on March 22, May 5, July 7, and Dec. 14 requesting that he file the motion to extend time. The attorney did not respond to these letters or file a motion to extend time.

    On Jan. 30, 2001, the court of appeals ordered the attorney to file the motion to extend time and file an affidavit explaining why the notice of intent was filed late and why the attorney had failed to respond to the letters from the SPD's office. On Feb. 13, 2001, the attorney filed the motion to extend time and his affidavit. In his affidavit, the attorney stated that he did not file the motion to extend time or respond to the letters from the SPD's office because he believed that such actions might involve him in a conflict of interest, since he believed that he would be acting as appellate counsel, while subject to claims for ineffective assistance of counsel, and that he may be a potential witness to the late filing. On Feb. 22, 2001, the court of appeals granted the motion to extend time for filing. The court noted that the attorney's explanations did not justify his failure to respond to inquiries from the SPD's office.

    By failing to respond to letters of inquiry from the SPD's office regarding the filing of a motion to extend time for filing a notice of intent to pursue post-conviction relief, the attorney failed to act with diligence in representing a client, in violation of SCR 20:1.3.

    Failure to Act with Reasonable Diligence; Failure to Communicate; Failure to Timely Surrender Client File

    Violations of SCR 20:1.3, 20:1.4(b), 20:1.16(d)

    In December 1996, a client retained a law firm to represent him on appeal of his criminal conviction. Two attorneys from the firm worked on the appeal. The court of appeals affirmed the client's conviction, and the supreme court denied the client's petition for review in January 1999.

    The client wrote to the attorneys in March 1999 and April 1999, inquiring about post-conviction relief. One of the attorneys spoke with the client and advised him that the firm would possibly file a motion with the trial court for post-conviction relief pursuant to Wis. Stat. section 974.06. The client subsequently wrote to the attorneys in April 1999, June 1999, and July 1999, inquiring about post-conviction relief. Neither attorney replied to the client's three letters. In September 1999, the client again wrote to the firm inquiring about post-conviction relief, and in response, the client was advised that his concerns would be addressed. The attorneys, however, never addressed the client's concerns despite receiving three more letters from him.

    In December 1999, the client wrote to the firm advising the attorneys that he had filed a pro se motion for post-conviction relief and that he wanted his legal file. The next month, the client again wrote to the attorneys requesting documents from his file. The attorneys neither responded to the client's correspondence nor returned the file to the client. In April 2001, the client filed a motion in circuit court to compel the law firm to return his legal file. In response to the motion, the firm advised the court in May 2001, that the firm would return the file to the client. The attorneys, however, did not return the file until October 2001.

    By failing to return the client's file until October 2001, the attorneys failed to timely surrender papers and property to which the client was entitled, in violation of SCR 20:1.16(d). By not responding to the client's requests for information regarding post-conviction relief, the attorneys failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, in violation of SCR 20:1.4(b). Further, by failing to take any action on the client's possible section 974.06 motion between January 1999 and December 1999, the attorneys failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. Neither attorney had prior discipline. Both attorneys were privately reprimanded.

    Unreasonable Fees; Intellectual Property

    Violation of SCR 20:1.5(a)

    An attorney represented three separate corporations primarily in intellectual property matters. The attorney billed the work for these three clients at his hourly rate, usually $175 or $180 per hour. The attorney's fees and costs totaled $73,368 for the first client, $25,484.75 for the second client, and $21,380.25 for the third client. Each client paid its invoice as it was received.

    Other members of the attorney's law firm reviewed the attorney's billings in these three matters and expressed concerns that the attorney's fees were unreasonable. Particularly, concerns were raised over the amount of time the attorney billed for relatively simple tasks and the necessity of some of the work billed by the attorney. As a result of these concerns, substantial refunds were requested by and offered to each of the three clients. The law firm terminated the attorney's employment, and the attorney personally repaid 50 percent of the refunds.

    By billing an unreasonable amount for the services provided to the three clients involved in this matter, the attorney violated SCR 20:1.5(a), which requires a lawyer's fees to be reasonable. The attorney had no prior discipline.

    Knowingly Making a False Statement of Fact to a Tribunal

    Violations of SCR 20:3.3(a)(1), 20:8.4(c)

    At approximately 11 a.m., an attorney appeared in court for a hearing on a contempt motion for his client's failure to pay child support and provide income information. A bailiff assigned to the courtroom noted that the attorney had a strong odor of intoxicants emitting from his breath and that his eyes appeared to be bloodshot. The bailiff reported these observations to the judge.

    The judge requested that counsel for both parties appear in her chambers. On the record, the judge asked the attorney if he had been drinking. The attorney initially responded, "No." The attorney then consented to take a preliminary breath test. The result of the test was 0.24. The judge asked the attorney again if he had been drinking and the attorney stated that he had not been drinking since late the previous night. In his response to the grievance, the attorney admitted that he had been drinking as late as 3:30 a.m. on the morning of the hearing.

    By denying to the judge that he had been drinking on the morning of the hearing, the attorney knowingly made a false statement of fact to a tribunal, in violation of SCR 20:3.3(a)(1) and 20:8.4(c).

    The attorney had no prior discipline.

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