Wisconsin Lawyer
Vol. 75, No. 12, December
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.
Disciplinary proceeding against James W.
Bannen
The Wisconsin Supreme Court has suspended the law license of James W.
Bannen, 53, La Crosse, for three years effective Nov. 21, 2002, for
professional misconduct.
Bannen entered into a stipulation wherein he admitted assisting a
client in conduct that Bannen knew was criminal or fraudulent, contrary
to SCR 20:1.2; failing to hold client funds in trust, contrary to SCR
20:1.15(a); failing to keep complete trust account records, contrary to
SCR 20:1.15(e); failing to ensure that his firm had measures in place to
assure that the conduct of a nonlawyer employee was compatible with the
attorney's professional obligations, contrary to SCR 20:5.3(a);
representing a client when the representation was materially limited by
Bannen's own interests, contrary to SCR 20:1.7(b); two counts of failing
to keep a client reasonably informed, contrary to SCR 20:1.4; two counts
of engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation, contrary to SCR 20:8.4(c); and four counts of failing
to fully and fairly disclose all the facts and circumstances pertaining
to his alleged misconduct and making misrepresentations in disclosures
to the Board of Attorneys Professional Responsibility (BAPR),
predecessor to the Office of Lawyer Regulation (OLR), contrary to the
former SCR 22.07(2).
The court's order recognized several mitigating factors cited by the
referee, including that Bannen did not personally benefit from the
misconduct; that Bannen was unaware of an employee's criminal acts that
resulted in a loss of client funds; and that Bannen or his firm made
full restitution.
The court agreed with the referee's recommendation for a three-year
suspension and also ordered Bannen to pay the costs of the
proceeding.
Disciplinary proceeding against Jonathan C.
Lewis
The Wisconsin Supreme Court has suspended the Wisconsin law license
of Jonathan C. Lewis, 42, Minneapolis, Minn., for 60 days effective Oct.
2, 2002. Lewis is a Minnesota lawyer who also was admitted to practice
in Wisconsin in December 1996. The Wisconsin disciplinary rules applied
to the situation.
The court's order was based upon a stipulation between Lewis and the
OLR and concerned Lewis' representation of two parties with conflicting
interests in a complex business transaction. At no time did Lewis obtain
written consent from either client regarding a conflict of interest,
although a provision in a proposed settlement agreement Lewis drafted
for one client would have substantially benefited the other client. It
also was clear that one client was a potential defendant in any
litigation filed by the other client and that both representations
involved similar defendants, so that obtaining damages on behalf of one
client would mean less money available to the other client. These
conflicts, the stipulation agreed, were in violation of SCR
20:1.7(b).
Lewis also neglected to file a lawsuit on behalf of one of these
clients, contrary to SCR 20:1.3; led the client nevertheless to believe
that the lawsuit was filed, thereby engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation, contrary to SCR
20:8.4(c); failed to comply with the client's reasonable requests for
information, contrary to SCR 20:1.4(a); and failed to cooperate with the
BAPR, now OLR, investigation, contrary to former SCR 22.07(2) and
21.03(4) and current SCR 22.03(6).
No costs were imposed in the case.
Disciplinary proceeding against Terry J.
Ness
The law license of Terry J. Ness, 38, formerly of Minneapolis, Minn.,
and now of Hudson, Wis., has been suspended for nine months effective
Nov. 6, 2002.
Ness was admitted to practice law in Wisconsin in 1998. He took, but
did not pass, the Minnesota bar exam. Ness nevertheless established a
Minneapolis law firm in partnership with a Minnesota-licensed attorney.
Ness represented to a federal court in Minnesota that he was eligible to
appear pro hac vice before that court because he was admitted to a
federal court in Wisconsin, which was not true. He also made
misrepresentations to a Minnesota state court about his eligibility to
practice before that court and about his law partner's involvement in a
case. The Wisconsin Supreme Court found that Ness thereby practiced law
in a jurisdiction where he was not licensed, contrary to SCR 20:5.5(a),
and made false statements to a tribunal, contrary to SCR
20:3.3(a)(1).
Other misconduct involved Ness's use of letterhead, Web sites, and
other communications that were false or misleading. Ness failed to
indicate his jurisdictional limitations on his Minnesota firm's
letterhead, contrary to SCR 20:7.5(b). The letterhead also falsely
stated that he was admitted in federal courts when he was not. The
firm's Web site falsely asserted that the firm was a national firm that
concentrated on False Claims Acts cases and had achieved significant
settlements and verdicts in that area, when the law firm had never
litigated such a case. The court determined that these communications
were contrary to SCR 20:7.1(a).
The court agreed with the referee's recommendation for a nine-month
suspension of Ness's license and assessed costs of the proceeding
against him.
Disciplinary proceeding against Virginia Rose
Ray
The Wisconsin Supreme Court has suspended the law license of Virginia
Rose Ray, 57, Dodgeville, for 60 days effective Nov. 6, 2002.
Ray's misconduct involved multiple failures to cooperate with the
investigation of BAPR, predecessor to the OLR, contrary to former SCR
22.07(2) and 21.03(4); engaging in offensive personality, contrary to
SCR 40.15 and 20:8.4(g); failing to maintain the respect due to courts
and judicial officers, contrary to SCR 40.15 and 20:8.4(g); failing to
deposit a retainer fee to her trust account, contrary to SCR 20:1.15(a)
and (d); retaining an unreasonable fee, contrary to SCR 20:1.5(a); and
failing to refund an unearned fee upon termination of the
representation, contrary to SCR 20:1.16(d).
In addition to the 60-day suspension, Ray was ordered to refund a
$4,000 fee to a client with 5 percent interest, and ordered to pay the
costs of the disciplinary proceedings.
Public reprimand of Constance Traylor
The OLR and Constance Traylor, Overland Park, Kan., 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 on Oct. 23, 2002.
After graduating from the U.W. Law School in 1974, Traylor
immediately went to work for an out-of-state federal agency, where she
remains employed. That position has always involved the practice of law,
and, since 1997, also has involved the supervision of other lawyers in
their practice of law. Traylor therefore was required to maintain an
active state law license. Wisconsin is the only state in which Traylor
has ever been licensed. Traylor elected to become an inactive member of
the State Bar of Wisconsin in April 1988. Traylor states that she
believed her inactive status affected only her eligibility to practice
law in Wisconsin.
In April 2001, Traylor's employer issued a directive requiring all
its attorneys to provide evidence of active membership in the bar of at
least one state. Traylor states that this directive was the first
instance in which she knew that active membership in a bar was a
requirement of her employment. Traylor immediately contacted Wisconsin
licensing authorities to learn what was required to regain active
membership. Traylor, however, continued to practice law while she sought
reactivation.
Through an administrative error in August 2001, Traylor was informed
mistakenly that her Bar membership was transferred to active status,
when, in fact, her license still was inactive. In March 2002, Traylor
was told that a problem had occurred with converting her license to
active status. Traylor immediately informed her employer of the problem
and also sought reactivation of her Wisconsin license. Again, Traylor
continued to practice law with an inactive license while she sought
reactivation. Traylor's license was reactivated by order dated May 14,
2002.
As to her practice of law subsequent to her transferring to inactive
membership in 1988, Traylor violated SCR 10.03(4), which states, "Only
active members may practice law. No individual other than an enrolled
active member of the state bar may practice law in this state or in any
manner purport to be authorized or qualified to practice law." SCR
10.03(4) 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 April 1988 transfer to inactive status
in jurisdictions where licensure was dependent on her maintaining an
active state law license, Traylor 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...".
Disciplinary proceeding against Christopher
L. O'Byrne
On Nov. 15, 2002, the Wisconsin Supreme Court revoked the law license
of Christopher L. O'Byrne, 49, Port Washington, commencing that day. In
addition, the court ordered that O'Byrne pay the costs of the
disciplinary proceeding; that he pay $33,758.89 in restitution; and that
the restitution be paid prior to the costs of the disciplinary
proceeding. Prior to the revocation, the court had suspended O'Byrne's
license indefinitely, effective April 16, 2001, for failing to cooperate
with two OLR investigations, including one involving a trust account
overdraft. He also was suspended for 60 days, effective Dec. 26, 2001,
based upon his neglect of a probate matter.
The revocation was based upon multiple trust account conversions that
were discovered during the investigation of a June 19, 2000 overdraft on
O'Byrne's trust account. That overdraft led to the discovery of several
problems, and ultimately resulted in an audit of O'Byrne's trust
account. Due to O'Byrne's failure to produce various records, OLR was
required to obtain them by subpoena from his bank. However, one day
after being suspended for failing to cooperate with this investigation,
O'Byrne's counsel submitted O'Byrne's explanation for the overdraft,
along with various trust account records. In that response, O'Byrne
misrepresented that the overdraft was due to his mistakenly withdrawing
funds from his trust account rather than his business account. [SCR
20:8.4(c)]. In comparing the "original" records produced by O'Byrne with
those subpoenaed from his bank, OLR discovered that four of the checks
produced by O'Byrne, all of which were payable to O'Byrne, had been
altered. [SCR 20:8.4(c)].
One of the conversions related to O'Byrne's representation of a
client regarding the purchase of a business. A portion of the sale
proceeds, $10,000, was to be held in O'Byrne's trust account, pending
the seller's compliance with various terms of the sale. On Sept. 14,
1998, O'Byrne deposited the $10,000 check into a joint personal checking
account owned by O'Byrne and his wife. [SCR 20:1.15(a)]. By Dec. 8,
1998, the entire $10,000 had been converted, and the personal checking
account was overdrawn. [SCR 20:8.4(b)]. The seller failed to comply with
several of the sale terms, and the client advised O'Byrne of these
problems. O'Byrne told the client that he would place a lien on a
vehicle that was part of the purchase, so that it could not be sold.
O'Byrne subsequently misrepresented to the client that he had obtained a
lien when he had not.
The client frequently asked O'Byrne about the $10,000. While he
represented to the client that he could not release the funds because
the seller had to sign off on them, the actual reason he was unable to
release the funds was because he had misappropriated them. He further
misrepresented to the client that he was working on obtaining a release.
[SCR 20:8.4(c)]. In June of 2001, the client retained new counsel. That
attorney obtained a conditional release of the funds. O'Byrne failed to
respond to several telephone calls and letters from the new attorney and
never returned the $10,000. [SCR 20:1.16(d)].
The second matter in which conversions occurred involves collection
work that O'Byrne handled for a health care group. The health care group
did not allow him to deduct fees from the funds that he collected. He
was required to bill the client for the fees. OLR's audit of O'Byrne's
trust account revealed that O'Byrne had failed to turn over between
$23,258.89 and $24,968.16 to the health care group. [SCR 20:8.4(b)].
The third matter involved O'Byrne's representation of a client on a
Class E felony charge. The client wanted the charge reduced to a
misdemeanor, and O'Byrne indicated that he foresaw no problems in having
the charge reduced. He also suggested that the client give him the funds
to make restitution, as it would be a sign of good faith when he began
talking to the district attorney. On April 5, 2000, the client gave
O'Byrne two checks, one for legal fees and a second in the amount of
$1,850, which was for restitution. The $1,850 check was deposited into
O'Byrne's trust account; however, by June 19, 2000, the entire amount
had been converted. [SCR 20:8.4(b)].
In September 2000, the client entered a no contest plea to the
felony, based upon O'Byrne's representation to him that the prosecutor
had refused to discuss a reduction in the charge. However, O'Byrne never
told the prosecutor that the client had given him the funds to make
restitution. [SCR 20:8.4(c)]. The prosecutor indicated to OLR that, had
she known the restitution had been paid up front, she would have
seriously reconsidered the felony charge. In November 2000, the client
was convicted of a felony, sentenced to 30 days in jail, placed on
probation for three years, and ordered to pay $1,921 in restitution and
costs. By continuing to represent this client after misappropriating the
$1,850, thereby compromising the client's opportunity to obtain a better
plea bargain, O'Byrne represented a client under circumstances where his
own interests materially limited the representation. [SCR
20:1.7(b)].
In January 2001, the client advised his probation officer that he had
given O'Byrne the funds to pay restitution. The probation officer
contacted O'Byrne, and O'Byrne told him that he would forward the
restitution. In April 2001, O'Byrne sent the client a check for the
restitution, which was drawn on his law office account. That check
initially was returned due to insufficient funds, but cleared the
following day. By failing to promptly deliver the $1,850 to either the
client or the probation agent, O'Byrne violated SCR 20:1.15(b). In
addition, O'Byrne failed to cooperate with OLR's investigation of this
matter. [SCR 22.03(6)}.
The final instance of misconduct involves O'Byrne's representation of
a client regarding a visitation matter. The client gave O'Byrne $500 to
commence the representation. O'Byrne deposited the funds into his
personal account, but performed no work for the client. The client
requested a refund, and while O'Byrne agreed to make one, he never did
so. [SCR 20:1.16(d)]. O'Byrne also failed to cooperate with OLR's
investigation of this matter. [SCR 22.03(6)].
Wisconsin
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