Vol. 75, No. 11, November
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
Terry Ann Morgan
The Office of Lawyer Regulation (OLR) and Terry Ann Morgan, 44, of
Sleepy Hollow, New York, entered into an agreement for imposition of a
public reprimand pursuant to SCR 22.09(1). A referee appointed by the
Wisconsin Supreme Court thereafter approved the agreement and issued the
public reprimand on Aug. 6, 2002.
After graduating from the U.W. Law School in 1988, Morgan immediately
went to work for an out-of-state federal agency, where she remains
employed to date. That position has always involved the practice of law,
and Morgan therefore was required to maintain an active state law
license. Wisconsin is the only state in which Morgan was licensed, and
that license was suspended in 1990 for failure to pay State Bar dues and
in 1991 for failure to comply with continuing education requirements.
Despite her suspension, in 1991 Morgan petitioned and was admitted to
practice before the U.S. District Court of New York on the basis of her
Wisconsin licensure.
Morgan said she was never notified of her Wisconsin suspensions and
believed that she remained a member in good standing. In approximately
June of 2001, however, pursuant to an inquiry from her employer, Morgan
contacted the State Bar of Wisconsin and was informed that she was
suspended and would have to file a petition for reinstatement. Morgan
nevertheless continued to practice law and did not file a petition for
reinstatement until late October or early November of 2001. Her law
license was reinstated by the Wisconsin Supreme Court on March 5,
2002.
As to her practice of law subsequent to her 1990 suspension for
failure to pay State Bar dues, Morgan violated SCR 10.03(6), which
states, in relevant part, "[N]o person whose membership is so suspended
for nonpayment of dues may practice law during the period of
suspension." SCR 10.03(6) is enforceable under the Rules of Professional
Conduct through SCR 20:8.4(f), which states, "It is professional
misconduct for a lawyer to ... violate a statute, supreme court rule,
supreme court order, or supreme court decision regulating the conduct of
lawyers." With respect to law practice subsequent to her 1991 CLE
suspension, Morgan violated SCR 20:5.5(a), which states, "A lawyer shall
not ... practice law in a jurisdiction where doing so violates the
regulation of the legal profession in that jurisdiction...."
Public Reprimand of Timothy J.
Carmichael
The OLR and Timothy Carmichael, Sun Prairie, entered into an
agreement for imposition of a public reprimand, pursuant to SCR
22.09(1). A referee appointed by the supreme court thereafter approved
the agreement and issued the public reprimand in accordance with SCR
22.09(3).
Carmichael was charged with third offense operating while intoxicated
(OWI) and three counts of obstructing an officer, following a traffic
stop in Madison. Carmichael entered a guilty plea to the OWI charge.
Carmichael pleaded no contest to two obstruction counts and was
offered a first offender program. The third obstruction count was
dismissed. Carmichael completed the first offender program, and the
court dismissed the two obstruction counts. All of the obstruction
counts related to statements Carmichael made during police interviews.
Carmichael denied being present at the traffic stop or being the driver
of the car that was stopped, and he claimed to have given his car key to
another person before the incident in question. In fact, during the
traffic stop, Carmichael had given his car key and driver's license to
the responding officer, who determined that the person depicted on the
driver's license and the driver of the car were the same person.
Carmichael subsequently fled the scene on foot.
By making false statements to investigating police officers on three
occasions, Carmichael violated SCR 20:8.4(c), which provides it is
professional misconduct for a lawyer to engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation. With respect to the
false statements leading to convictions on two counts of obstructing,
Carmichael violated SCR 20:8.4(b), which states it is misconduct for a
lawyer to commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness, or fitness as a lawyer in other respects.
Carmichael's conviction of third offense OWI was evidence of a separate
violation of SCR 20:8.4(b).
Disciplinary Proceeding against Susan
M. Cotten
On Sept. 11, 2002, the Wisconsin Supreme Court ordered a one-year
suspension of the law license of Susan M. Cotten, Madison, effective the
date of the order. The court also ordered Cotten to pay restitution to a
client and to pay the costs of the proceeding.
The suspension was based upon Cotten's misconduct regarding two
clients. In the first matter, Cotten represented the plaintiff in a
legal malpractice action. Cotten filed answers to interrogatories
described by the trial court as "astonishing," and which were so
unresponsive as to provide evidence of a violation of SCR 20:1.1, which
requires lawyers to provide competent representation to clients. Cotten
discontinued work on the case, including a failure to respond to
discovery requests, which led to the court's dismissal of the suit and
that provided evidence of Cotten's violation of SCR 20:1.3, which
requires lawyers to act with reasonable diligence and promptness in
representing clients.
Cotten also violated SCR 20:1.4(a), which requires a lawyer to keep a
client reasonably informed about the status of a matter, in that she
failed to inform her client of events such as missed deadlines and the
dismissal of the action. Cotten failed to withdraw from the case when a
medical condition purportedly rendered her incapable of proceeding, in
violation of SCR 20:1.16(a)(2), which requires a lawyer to withdraw if
the lawyer's physical or mental condition materially impairs the
lawyer's ability to represent the client. Cotten also failed to return
several audiotapes belonging to the client after the lawsuit had been
dismissed, in violation of SCR 20:1.16(d), which requires a lawyer, upon
termination of representation, to protect the client's interests,
including surrendering property to which the client is entitled.
Cotten also violated SCR 20:8.4(c), which prohibits conduct involving
dishonesty, fraud, deceit, or misrepresentation, when she told the
client the case was proceeding smoothly, when in fact Cotten missed
deadlines and failed to respond to the court, and the case had been
dismissed. Cotten failed to file a written response to the grievance in
the first matter, and failed to provide certain information requested by
a district investigative committee, contrary to SCR 21.15(4),
22.001(9)(b), 22.03(2), 22.03(6), and 22.07(2).
In a second matter, while administratively suspended for
noncompliance of CLE requirements, Cotten accepted a $1,150 retainer and
$50 case opening fee from a woman and undertook to represent her,
contrary to SCR 31.10(1), which prohibits law practice during a CLE
suspension. Cotten thereafter failed to respond to a Missouri attorney
acting on the client's behalf, and failed to return the retainer and
case opening fee, in violation of SCR 20:1.16(d). Cotten failed to
cooperate with OLR in the investigation of the second matter, contrary
to SCR 21.15(4), 22.001(9)(b), 22.03(2), and 22.03(6).
In addition to ordering a one-year suspension of Cotten's law
license, the court ordered that Cotten make restitution to the client in
the second matter in the amount of $1,200.
Cotten received a previous six-month disciplinary suspension,
effective May 8, 2001, for neglect, failure to communicate with a
client, and engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
Public Reprimand of Jeffery J.
Drach
The OLR and Jeffery Drach, Wausau, entered into an agreement for
imposition of a public reprimand, pursuant to SCR 22.09(1). A referee
appointed by the supreme court thereafter approved the agreement and
issued the public reprimand in accordance with SCR 22.09(3).
A man, A, had a business partnership with his brother,
B. They signed an initial partnership agreement in 1959. The
partnership had significant debt. In 1990, A and his wife hired
Drach to represent them in the partnership, in a corporation, and
personally. Drach's letter of retainer did not state that the scope of
the representation would extend to representation of the partnership
itself or of A's brother, B.
Drach began acting as the partnership's attorney by 1991 and did so
until 1997. There was no fee agreement between Drach and the
partnership, nor did Drach disclose in writing to B that Drach
had initially represented A and his wife. B, however,
knew of Drach's role as partnership attorney, and during much of the
same period, B was represented by independent counsel.
From 1990 through June 1997, at which point the partnership filed for
bankruptcy protection, Drach assumed A to be the managing
partner, relying on him to make decisions and to keep B
informed as to the partnership's transactions. B asserts he was
not always kept informed. In June 1997, Drach discovered the partnership
agreement and that it did not allow for one managing partner. During the
course of the representation, the situation became complicated by the
deterioration of the relationship between A and B, who
had different perceptions of their relationship with the partnership's
principal creditor.
In February 1995, at A's direction, Drach prepared two real
estate mortgages, one from A and his wife to Drach, and the
second from A and his wife to the partnership's accountant to
protect Drach's and the accountant's professional fees, on real estate
that the partnership owned, without informing B. B said he
first learned of the mortgages when they were listed as secured
obligations in the partnership's bankruptcy in 1997. Drach's failure to
consult with and keep B informed when he prepared the mortgages
violated SCR 20:1.2(a), which requires lawyers to consult with clients
as to the objectives of representation, and SCR 20:1.4(a) and (b), which
requires lawyers to keep clients reasonably informed about the status of
a matter and to explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the
representation.
Early in 1996, the partnership's principal creditor offered to settle
the indebtedness for a lump sum payment, but Drach unsuccessfully sought
to refinance the debt. A bank, however, offered to lend Drach $150,000
to purchase some of the partnership's real estate personally, and Drach
could, in turn, lend the $150,000 to the partnership.
In early March 1996, Drach prepared an offer whereby he would
purchase the property for $150,000. A accepted the offer. An
addendum to the offer identified the buyer as a realty company, with the
names of Drach, A, and B appearing underneath. The
partnership was identified as the seller, with A's name
appearing underneath. Drach and A signed the addendum, and the
line for B's signature was left blank. Drach did not inform
B or his counsel of the $150,000 offer to purchase until
October 1996. The strategy for Drach to purchase the property was never
carried out. Drach's failure to inform B of the proposal
whereby Drach and the partners would purchase the property violated SCR
20:1.4(a).
In August and October 1996, the creditor obtained several judgments
against the partnership and A and B personally. In
March 1998, Drach prepared articles of incorporation for a corporation
whose principals were A's son and relatives of A's
wife. Drach entered the legal work in the partnership's billing records,
although the billing was never sent to the partnership. It was
understood that the partnership would pay the legal costs relating to
organizing the corporation and the subsequent purchase of the
partnership's debt by the corporation. In April 1998, the corporation
purchased a note and mortgage held by the creditor on partnership land
and also obtained an assignment of the creditor's foreclosure judgment.
Shortly thereafter, B had a total falling out with A
and the corporation. The corporation then decided to proceed immediately
with the collection remedies it had acquired from the creditor. At that
time, Drach concluded he had a conflict of interest, and he withdrew
from the case.
At the time of its incorporation, the corporation and the partnership
had a mutual goal of preserving the partnership and avoiding
foreclosure. In drafting the articles of incorporation for the
corporation, which was organized, at least in part, to seek to purchase
a judgment, note, and mortgage, and consequently, becoming the largest
creditor of Drach's client, the partnership, and with the expectation
that the partnership would pay the legal fees related to preparing the
articles of incorporation, Drach committed a violation of SCR 20:1.7(b),
which prohibits a lawyer from representing a client when that
representation conflicts with the lawyer's responsibilities to
another.
Wisconsin Lawyer
