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    Wisconsin LawyerWisconsin Lawyer
    Vol. 76, No. 9, September 2003

    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 Anne B. Shindell

    On July 2, 2003, the Wisconsin Supreme Court revoked the Wisconsin law license of Anne B. Shindell, 51, effective the date of the order. The court also ordered that Shindell pay the costs of the proceeding. Shindell formerly practiced in Milwaukee. The court entered the order upon consideration of Shindell's Petition for Consensual License Revocation (SCR 22.19), in which she acknowledged that she could not defend against the misconduct alleged in a complaint filed by the Office of Lawyer Regulation (OLR) arising out of Shindell's attempted theft by fraud and resisting or obstructing an officer. In addition, Shindell conceded that she could not successfully defend against other allegations of misconduct being investigated by the OLR in 23 additional grievance investigations. Both the OLR and the referee in the disciplinary proceeding supported Shindell's petition for revocation.

    Shindell's disciplinary history included an Oct. 21, 2002, summary suspension of her law license based on criminal convictions for attempted theft by fraud and resisting or obstructing an officer and a December 2002 one-year license suspension for misconduct with respect to her representation of five clients, Disciplinary Proceedings Against Shindell, 2002 WI 133,
    158 Wis. 2d 63, 654 N.W. 2d 844.

    Medical incapacity proceeding against Alan A. Olshan

    On July 9, 2003, the Wisconsin Supreme Court imposed conditions on Alan A. Olshan's continued practice of law due to medical incapacity. Olshan, who practices in Milwaukee, stipulated to the propriety of the conditions.

    The imposition of conditions upon Olshan's law license resulted from concerns, beginning in 1999, related to the practice of law, in which Olshan's ability to perform his profession to acceptable professional standards was at issue. The supreme court imposed the following conditions upon Olshan's continued practice of law:

    1) Olshan shall meet with his physician for assessment and treatment at least every three months, and shall submit quarterly assessment reports to the OLR;

    2) Olshan shall provide full medical and informational releases to the OLR so that OLR staff may communicate with his treating physicians;

    3) Olshan shall not represent any clients at contested hearings without cocounsel or represent any criminal defendants in felony matters without cocounsel; and

    4) Olshan shall cooperate with the monitoring of his law practice by an attorney, acceptable to the OLR, with quarterly reports to be filed by the monitoring attorney.

    Disciplinary proceeding against Michael L. Rhees

    The Wisconsin Supreme Court suspended the law license of Michael L. Rhees, Clinton, Ind. (formerly of Phoenix, Ariz.), for four months, effective July 9, 2003, as discipline reciprocal to that imposed upon Rhees by the Arizona Supreme Court in 2001. Rhees stipulated to the propriety of identical, reciprocal discipline.

    The four-month suspension of Rhees's Arizona law license resulted from Rhees's continued practice of law after the suspension of his Arizona law license for his failure to submit his Mandatory Continuing Education (MCLE) affidavit and payment of late fees. After his MCLE suspension, Rhees remained the attorney of record for 18 clients for whom he filed three pleadings/motions, attended one hearing, and remained active in cases for other clients of his law firm. Rhees also misrepresented to the court that he had untimely filed his MCLE affidavit in 1998 when, in fact, he had not filed his MCLE affidavit. Rhees further made misrepresentations to his clients and others concerning his ability to practice law.

    In addition to Wisconsin's reciprocal disciplinary suspension, Rhees's Wisconsin law license remains suspended for his noncompliance with CLE requirements.

    Disciplinary proceeding against Marvin E. Marks

    On July 16, 2003, the Wisconsin Supreme Court ordered a 60-day suspension of the Wisconsin law license of Marvin E. Marks, 46, Ironwood, Mich., effective Aug. 20, 2003. Marks is admitted to practice in Wisconsin and Michigan.

    Marks was retained by members of a Wisconsin family to pursue claims stemming from an automobile accident occurring in Wisconsin. The adverse driver was a Michigan resident. Two separate contingent fee agreements were executed in connection with the multiple claims, each of which called for a fee of 25 percent of any recovery unless the matter went to trial, in which case the fee would be one-third of any recovery. Each of the contingent fee agreements also contained the following paragraph:

    "If for any reason, the Attorney-Client relationship was to be terminated prior to settlement, compromise, or judgment, etc., without good cause on client's behalf, the client hereby agrees to pay attorney for the value of legal services received by the client ... on an hourly rate schedule of $100.00 per hour plus expenses ..."

    Marks diligently took initial steps to advance the cases, but prior to resolution and within two weeks of having hired Marks, the clients elected to transfer the cases to successor counsel, a Wisconsin attorney.

    Following termination of his representation, knowing that the contingent fee agreements provided for an hourly-based fee under such circumstances, Marks falsely stated in letters to two insurance companies involved in the matters that he maintained a 25 percent lien on any settlement proceeds. In its decision in the disciplinary action, the supreme court stated, "Such a representation is simply contrary to the express terms of the fee agreement." Marks violated SCR 20:8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.

    Marks filed a suit in Michigan against successor counsel, the former clients, and the insurers, alleging interference with contract and asserting a "charging lien." Pursuant to the choice of law provisions in SCR 20:8.5, the OLR's complaint in the disciplinary action alleged that Marks' complaint and amended complaint in the Michigan suit violated the Michigan Rule of Professional Conduct (MRPC) that prohibits frivolous claims. The OLR further alleged that Marks violated the MRPC prohibition against dishonesty, fraud, deceit, or misrepresentation by claiming in the Michigan suit that a client billing statement had not been paid, when in fact it had. The referee in the disciplinary action determined that the OLR lacked authority to enforce the MRPC, and dismissed the counts charging MRPC violations. Describing the issue as one of first impression, the supreme court concluded that the referee had erred in dismissing the MRPC counts, and it held "that SCR 20:8.5 authorizes the OLR to proceed with a complaint alleging violations of the Michigan Rules of Professional Conduct for alleged misconduct that occurred in a proceeding before a court in the state of Michigan." The court, however, determined that judicial efficiency would not be advanced by a remand to the referee for consideration of the alleged MRPC violations.

    Marks' prior Wisconsin discipline consisted of a 1992 private reprimand, a 1994 public reprimand, and a 1999 private reprimand.

    Disciplinary proceeding against Francia M. Evers

    On July 2, 2003, the Wisconsin Supreme Court revoked the law license of Francia M. Evers, 51, Milwaukee, effective that day. In addition, the court dismissed as moot the OLR's Jan. 9, 2003, motion for the temporary suspension of Evers' license, pursuant to SCR 22.21(1) (threat to the public). That motion was based upon conversions, other serious trust account irregularities, and an apparent gambling problem. Evers had opposed the motion.

    The revocation was based upon Evers' petition for consensual revocation. In that petition, she indicated that, "due to her emotional health and financial stressors," she could not successfully defend against the allegations in an amended disciplinary complaint or against additional matters being investigated by the OLR. While concerned about Evers' refusal to admit to the accuracy of all of the allegations against her, the court, with one dissent (Bradley, J.), accepted Evers' concession that she could not successfully defend herself.

    The OLR's misconduct summary alleged that Evers converted more than $4,900 from a client she represented in a discrimination claim (SCR 20:8.4(c)); failed to hold in trust funds that had been advanced by that client for costs (SCR 20:1.15(a)); failed to promptly refund unearned fees and costs (SCR 20:1.15(b)); failed to reduce her contingent fee agreement in that matter to writing (SCR 20:1.5(c)); and misrepresented to the OLR how the cost advance had been handled (SCR 22.03(b)).

    The OLR's summary further alleged that in June of 2001, at a casino, Evers gave a $1,100 check, drawn on her law office's business account, to an acquaintance in exchange for cash. Such exchanges between the two had occurred in the past. Evers stopped payment on the check, and the acquaintance commenced a small claims action, which culminated in the issuance of a body attachment against Evers. By failing to comply with court orders requiring her to appear and to pay the judgment, and by keeping funds that did not belong to her, Evers engaged in conduct involving dishonesty (SCR 20:8.4(c)).

    The OLR's summary further alleged that Evers also failed to hold in trust and converted to her own purposes funds advanced for costs in a bankruptcy proceeding (SCR 20:1.15(a) and SCR 20:8.4(c)); that in an unrelated bankruptcy, she made misrepresentations to the court regarding the client's payment of the filing fee (SCR 20:3.3(a)(1)); and that Evers issued a $585 check to the bankruptcy court to pay filing fees in three bankruptcies when she knew it was likely that there were insufficient funds to cover that check (SCR 20:8.4(c)).

    In addition to those matters, OLR was investigating Evers for multiple conversions of client funds (SCR 20:8.4(c)), including $8,755 in a probate matter; $4,694 in a post-divorce matter; $2,422 in a discrimination matter; $6,421 in two personal injury matters; and $7,727 in a worker's compensation matter. The OLR also was investigating Evers' commingling of trust funds into her business account (SCR 20:1.15(e)); unexplained cash withdrawals of more than $23,000 from her trust account and unexplained telephone transfers of more than $21,000 from her trust account to her business account (SCR 20:1.15(a)); dishonesty with respect to fees owed to cocounsel in a criminal matter (SCR 20:8.4(c)); failure to hold in trust a $4,000 payment of costs in a discrimination matter (SCR 20:1.15(d)); failure to comply with court orders in an action brought against her by an expert witness in that case, resulting in a bench warrant (SCR 20:3.4(c)); and engaging in conduct involving dishonesty and conflicts of interest relating to her obtaining $50,000 from a man she had represented (SCR 20:8.4(c) and SCR 20:1.8).

    The court's order revoking Evers' law license based upon her petition followed by only two days the referee's report recommending revocation in the underlying disciplinary action. The OLR is seeking an assessment against Evers for the costs of that proceeding.

    Disciplinary proceeding against Elvis C. Banks

    On July 16, 2003, the Wisconsin Supreme Court revoked the law license of Elvis C. Banks, 41, Milwaukee, effective that day. In addition, the court ordered that Banks pay the costs of the disciplinary proceeding. The court also dismissed Banks' petition for consensual revocation, concluding that its acceptance of the referee's recommendation of license revocation made it unnecessary to rule on the petition.

    The revocation was based upon Banks' pleading no contest to "each and every allegation" in the OLR's amended complaint and upon a referee's recommendation after a contested sanction hearing. The misconduct included a total of 42 counts in approximately 20 separate client matters. In nine civil actions and one bankruptcy matter, Banks failed to provide competent representation to his clients (SCR 20:1.1). In seven of those matters, he also failed to act with reasonable diligence (SCR 20:1.3). In one of the matters, he failed to communicate with the client, and in another, he commenced suit without notice to the client (SCR 20:1.4(a)). His lack of competence and neglect resulted in the dismissal of at least six of the matters.

    One of the civil matters involved Banks' actions as guardian ad litem for three minors. He filed three separate petitions for settlement approval in their case, thereby unnecessarily incurring two extra filing fees. Inasmuch as the proposed settlements would have netted one child with 20 cents, the second with 10 cents, and the third with a negative $457, the court barred Banks from taking fees. While the court ordered him to pay the settlement proceeds to the clerk of courts, the order that he drafted failed to include that requirement, and he ultimately failed to comply with it (SCR 20:3.4(c)). Finally, in May of 2001, Banks met with four circuit court judges, who expressed their concerns to him about his law practice.

    When the judges questioned him about his handling of the three minor settlements, he falsely stated that he had invested the proceeds in a mutual fund (SCR 20:8.4(c)). The funds were not invested until more than two weeks later. During the OLR's investigations, Banks also acknowledged that he had not placed his contingent fee agreements in writing (SCR 20:1.5(c)).

    In addition to those matters, Banks agreed to file a petition on behalf of a client but never did so (SCR 20:1.3). Banks employed an individual, described as a former "jailhouse lawyer," who apparently sent the client a letter on Banks' letterhead, requesting $500. The client sent the $500 to Banks' office and the employee purportedly pocketed the money. During the investigation, Banks indicated that this employee "often sent out letters like this" and kept retainers (SCR 20:5.3(a)).

    When the OLR commenced an audit of Banks' trust and business accounts, and analyzed account activity for the first eight to 10 transactions, it was discovered that Banks had mishandled client funds in virtually every case. In eight matters, he deposited settlement proceeds into his trust account and transferred them to his business account (SCR 20:1.15(a)). In seven of those matters, he converted at least $12,950 to his own purposes (SCR 20:8.4(c)).

    Banks generally distributed proceeds to the clients from his business account, but then converted to his own purposes whatever portion of the settlement he had not distributed to the client, including funds to which care providers were entitled. He apparently reimbursed some of the care providers after the OLR began its investigation. In one audited matter, Banks represented a mother and her minor daughter regarding a personal injury matter. He converted $2,098.75 from the mother's settlement, which is included in the above-referenced $12,950. However, he failed to disclose the location of the daughter's $1,185.25 settlement to the OLR during the investigation, despite the fact that the court had ordered him to place those funds in a restricted account (SCR 20:1.15(f)).

    The OLR audit also revealed that Banks was not maintaining the required records for his trust account (SCR 20:1.15(e)), and that he had falsely certified in his annual dues statements that he was maintaining those records (SCR 20:1.15(g)).