Vol. 75, No. 6, June
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 Charles E.
Brady
The Office of Lawyer Regulation (OLR) and Charles E. Brady, 49, River
Falls, entered into an agreement for imposition of 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 in
accordance with SCR 22.09(3).
Brady, an associate in a two-lawyer law firm, wrote six checks
totaling $4,000 on the law firm's business checking account made payable
to himself or cash, and stamped the law firm owner's signature on the
checks without the owner's authorization while the owner was away on a
vacation in March 2001. Brady negotiated the checks for his own use.
Brady typically had no responsibility for the firm's financial matters,
but during the owner's absence, Brady was authorized to handle exigent
financial matters by using a stamp of the owner's signature on checks
that were to be drawn on the firm's business checking account.
Brady took the above actions after calculating that his own personal
checking account would be substantially overdrawn unless he made a
deposit into the account. Brady reported his actions to the owner on his
return, and both Brady and the owner reported the matter to the OLR.
Brady previously had requested and received cash advances totaling
about $2,000 from the owner as short-term loans after Brady had
experienced financial difficulties. None of the loans were repaid at the
time of the owner's vacation. Brady and the owner had never discussed
whether Brady's personal financial circumstances would constitute any
sort of compelling circumstance justifying removing funds from the law
firm's business checking account. In writing the checks to himself or to
cash and in negotiating the checks for his personal use, all without the
owner's authorization or approval, Brady violated SCR 20:8.4(c).
By mid-April 2001, Brady had returned all funds he had withdrawn from
the law firm's checking account and repaid the personal loans to the
owner.
Brady previously received a public reprimand in 1997 for failing to
make full disclosure of his financial situation to a client from whom he
borrowed money.
Disciplinary Proceeding against Dianna L.
Brooks
The Wisconsin Supreme Court suspended the law license of Dianna L.
Brooks, Ellenwood, Ga., for 90 days, effective April 10, 2002, as
discipline reciprocal to that imposed upon her by the Michigan Attorney
Discipline Board in 1999.
Brooks' Wisconsin law license already had been suspended for failure
to pay dues and for noncompliance with CLE requirements. During the
course of an OLR investigation into a reinstatement petition filed by
Brooks in 2001, Brooks disclosed Michigan's 90-day suspension of her
Michigan law license for misconduct. That misconduct included violations
of Michigan rules regarding competency, scope of representation,
diligence, communication with a client, fees, trust accounting,
termination of representation, improper practice of law in Maryland
prior to her admission pro hac vice in a Maryland matter,
abandonment of two clients, and failing to file an answer to three
investigative requests from Michigan's grievance administrator.
In addition to the 90-day suspension, Brooks was ordered by the
Michigan Attorney Disciplinary Board to make restitution, which she did
prior to successfully reinstating her Michigan law license.
In Wisconsin, the OLR filed a reciprocal discipline complaint and
added to the recitation of Michigan misconduct the charge that Brooks
committed additional misconduct by failing to timely notify the OLR's
predecessor, BAPR, of Michigan's imposition of public discipline.
Based upon a stipulation between Brooks and the OLR, the supreme
court, Justice Sykes dissenting, held that discipline identical to that
imposed in Michigan, a 90-day suspension, was appropriate in this
situation.
Public Reprimand of Ralph A. Kalal
In an order filed May 2, 2002, the Wisconsin Supreme Court publicly
reprimanded Ralph A. Kalal, 53, Madison, for professional misconduct
consisting of making knowing misrepresentations of fact to the supreme
court in the course of oral argument on behalf of an appellant, contrary
to SCR 20:3.3(a)(1), which states, "A lawyer shall not knowingly ...
make a false statement of fact or law to a tribunal."
In the case at issue, the court of appeals had denied a motion to
extend the brief deadline, and dismissed the appeal for failing to
timely file a brief, and cited Kalal's and his firm's history of
extension motions and tardy filings in other, unrelated cases. The
supreme court later concluded that the court of appeals had improperly
based its decision to dismiss the appeal on the conduct of Kalal and his
firm in cases unrelated to the appellant. In oral argument before the
supreme court in that case, certain of the justices questioned Kalal as
to the extent of past sanctions and warnings issued to Kalal and his
firm by the court of appeals.
In the disciplinary action later brought against Kalal, the supreme
court concluded that Kalal had not been truthful in his responses,
stating in part, "Oral argument is not an opportunity for deception ...
This is a critical part of the court's decision-making process. Attorney
Ralph Kalal knowingly made false statements to this court during oral
argument, in response to questions from members of the court. Under
these circumstances, only a strong, unmistakable and public sanction
will reinforce the attorney's obligation of truthfulness and candor in
court and deter the sort of gamesmanship that Attorney Kalal's conduct
represents."
Public Reprimand of Tim Osicka
The OLR and Tim Osicka, 53, 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).
The misconduct occurred in four separate client representations. The
first matter concerned Osicka's representation of a client in a
bankruptcy action. By failing to disclose to the client that he had
already signed a joint Motion for Approval of Compromise when the client
instructed him to not sign the motion, by failing to apprise the client
that the court had entered an order pursuant to that motion, by failing
to timely notify the client that he had to sign quit claim deeds or face
contempt of court charges, and by failing to timely respond to numerous
inquiries from the client, Osicka failed to keep the client reasonably
informed about the status of his matter and failed to promptly comply
with the client's reasonable requests for information, contrary to SCR
20:1.4(a). By failing to promptly seek to reopen the court's order and
correct figures that the client believed were in error, and by failing
to timely forward the quit claim deeds to the client for execution
pursuant to the court's order, Osicka failed to act with reasonable
diligence and promptness, contrary to SCR 20:1.3.
In the second matter, Osicka represented a woman regarding
post-divorce maintenance issues. By failing to appear at a hearing after
a judge did not respond to Osicka's request for a continuance, and by
preparing a brief that was struck by the court of appeals for its
inaccuracies and its failure to comply with the rules of appellate
procedure, Osicka failed to provide competent representation to his
client, contrary to SCR 20:1.1. By stating in his appellate brief that
the trial judge acted outrageously, and by inaccurately claiming that
the judge held an ex parte hearing, Osicka made statements concerning
the integrity of a judge with reckless disregard as to the statement's
truth or falsity, contrary to SCR 20:8.2(a), and failed to maintain the
respect due to courts of justice and judicial officers, contrary to the
attorney's oath, SCR 40.15, and SCR 20:8.4(g), which makes it misconduct
for an attorney to violate the attorney's oath.
In the third matter, a couple hired Osicka to evaluate a potential
medical malpractice case. By failing to timely respond to telephone
calls and letters from the couple, and by failing to promptly notify the
clients regarding his receipt of an evaluation from a consulting
attorney regarding the merits of the couple's case, Osicka failed to
keep a client reasonably informed about the status of a matter and
failed to promptly comply with reasonable requests for information,
contrary to SCR 20:1.4(a).
In the final matter, Osicka undertook representation of a woman
regarding post-divorce custody and visitation issues. The woman alleged
that burns her son suffered approximately two years earlier had been
intentionally inflicted by the son's father. By failing to arrange for
the testimony of the son's treating physician until serving him with a
subpoena less than an hour before the start of a hearing, and by failing
to present any testimony or evidence on his client's behalf in support
of her motion to deny placement, Osicka failed to provide competent
representation to his client, contrary to SCR 20:1.1. By failing to
promptly advise his client that she was required to obtain reports from
a counselor or face contempt of court sanctions, Osicka failed to keep a
client reasonably informed about the status of a matter, contrary to SCR
20:1.4(a).
Hearing to Reinstate Gregory J.
Straub
A public hearing on the petition of Gregory J. Straub to reinstate
his law license will be held on Thursday, Aug. 1, 2002, at 9 a.m. before
referee Charles Herro at the Oconomowoc City Hall, 174 E. Wisconsin
Ave., Conference Room C, Oconomowoc. Any interested person may appear at
the hearing and be heard in support of, or in opposition to, the
petition for reinstatement.
In 1993, Straub filed a voluntary petition for the revocation of his
Wisconsin law license. On Sept. 16, 1993, the Wisconsin Supreme Court
revoked Straub's license. Straub's petition for revocation indicated
that he could not successfully defend against allegations that he forged
a client's signature on a settlement check and release; converted
clients' settlement funds to his own use; misrepresented to his client
and others the amount of the settlement he received on behalf of the
client and his disbursements of those funds; settled clients' claims
without their knowledge or authorization; commingled personal funds in
an account with client funds and treated that account as a business
account for his law office; failed to keep required records of his trust
account transactions; and fabricated lien satisfactions in order to
obtain a personal loan.
To reinstate, Straub must prove by clear, satisfactory, and
convincing evidence that, among other things, he has not practiced law
during the period of revocation; he has maintained competence and
learning in the law by attending identified educational activities; his
conduct since the revocation has been exemplary and above reproach; he
has a proper understanding of and attitude toward the standards that are
imposed upon members of the bar and will act in conformity with the
standards; he can safely be recommended to the legal profession, the
courts, and the public as a person fit to be consulted by others and to
represent them and otherwise act in matters of trust and confidence and
in general to aid in the administration of justice as a member of the
bar and as an officer of the courts; he has fully described all of his
business activities during the period of suspension; and he has made
restitution to or settled all claims of persons injured or harmed by his
misconduct or, if not, has explained his failure or inability to do
so.
Straub also must demonstrate by clear, satisfactory, and convincing
evidence that he has the moral character to practice law in Wisconsin,
that his resumption of the practice of law will not be detrimental to
the administration of justice or subversive of the public interest, and
that he has fully complied with the terms of the order of revocation and
with the requirements of SCR 22.26.
Further information may be obtained from Office of Lawyer Regulation
Deputy Director Jeananne L. Danner, 342 N. Water St., Suite 300,
Milwaukee, WI 53202, (414) 227-4623; or from OLR Retained Counsel
Gregg Herman, 111 E. Wisconsin Ave., Suite 1725, Milwaukee, WI
53202, (414) 272-5632.
Public Reprimand of Michele A. Tjader
In an order filed April 26, 2002, the supreme court publicly
reprimanded Michele A. Tjader, 30, Madison, for professional misconduct
stemming from her October 1998 retainer to represent an incarcerated
person in seeking that person's transfer to a minimum-security facility
and/or to help him obtain parole. The client had completed a Department
of Corrections program that, when begun by the client, led to automatic
eligibility for transfer to minimum security and/or parole board review,
but when completed by the client, no longer led to such automatic
relief. With the client's consent, and in large part due to his
incarceration, much of the communication concerning the representation
flowed between the client's fiancée and Tjader.
At the inception of the attorney-client relationship, it was made
known to Tjader that the client desired quick resolution of the matter.
Tjader informed the client's fiancée that a writ of habeas corpus
was the appropriate legal procedure to use. Tjader had previously filed
one habeas corpus petition, and had never handled a case such as the
client's. Tjader reviewed one reported case, but did no additional legal
research and consulted with no other attorneys about proper procedure in
such a matter. At no point did Tjader consider or research the
possibility of filing a petition for writ of certiorari, or alternative
procedural mechanisms for accomplishing the client's objective. Tjader
violated SCR 20:1.1, which requires competent representation, defined as
requiring "the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation."
By letter dated Nov. 3, 1998, Tjader's paralegal informed the
client's fiancée that a habeas petition would be filed by
"Thanksgiving time." As of the Feb. 11, 1999, termination of the legal
representation, Tjader had filed nothing on the client's behalf,
contrary to SCR 20:1.3, which requires an attorney to act with
reasonable diligence and promptness in representing a client. During the
representation, Tjader failed to respond to multiple inquiries
concerning the status of the anticipated habeas petition, in violation
of SCR 20:1.4(a). Tjader violated SCR 20:8.4(c) by misrepresenting to
the client's fiancée in January 1999 that a habeas petition had
been filed. Contrary to SCR 20:1.16(d), Tjader did not promptly return
the unearned retainer fee upon termination of representation, though she
did so after the commencement of the grievance investigation. Tjader did
not pay interest on the delayed return of the unearned retainer, and the
supreme court's order of discipline includes the requirement that Tjader
pay such interest.
Wisconsin Lawyer
