Vol. 75, No. 10, October
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.
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
Pursuant to SCR 22.33(4), Webster is eligible to petition for
reinstatement nine months after the court's July 11, 2002, order denying
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
Private Reprimand Summaries
Failure to Act with Reasonable Diligence; Failure to
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
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
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
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
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
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
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
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
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.