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    Wisconsin Lawyer
    March 01, 2005

    Lawyer Discipline

    Wisconsin Lawyer
    Vol. 78, No. 3, March 2005

    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 William J. Gilbert

    On Nov. 24, 2004, the Wisconsin Supreme Court suspended the law license of William J. Gilbert for six months. Disciplinary Proceedings Against Gilbert, 2004 WI 144. The suspension was made retroactive to April 7, 2004, the date on which Gilbert was eligible to apply for reinstatement of his license from an earlier six-month suspension. SeeDisciplinary Proceedings Against Gilbert, 2003 WI 131. The court also ordered Gilbert to make restitution to his client of $15,797.37, plus post-judgment interest, and to pay the costs of the disciplinary proceeding.

    Gilbert's misconduct consisted of borrowing $10,500 from a client on terms that were unfair and unreasonable, based on Gilbert's failure to offer collateral, failure to disclose his financial circumstances, failure to offer the client the opportunity to seek independent counsel, and failure to obtain the client's written consent, in violation of SCR 20:1.8(a). By failing to disclose to the client the extent of Gilbert's financial difficulties, despite his knowledge that he was an extremely poor credit risk, Gilbert also violated SCR 20:8.4(c) which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.

    Additionally, Gilbert violated SCR 20:1.16(d) by failing to promptly forward the client's files to his new attorney on termination of Gilbert's representation, and he violated SCR 22.03(2) and SCR 20:8.4(f) by failing to submit a written response to the client's grievance. With respect to the last violation, however, the court noted that Gilbert's wife was very ill at the time he failed to file a written response to the grievance and that Gilbert did cooperate later in the investigation.

    Disciplinary Proceeding against Bruce B. Jacobson

    On Dec. 23, 2004, the Wisconsin Supreme Court suspended the law license of Bruce B. Jacobson, 59, Milwaukee, for five months, commencing Jan. 27, 2005. The court also imposed the following conditions on Jacobson's license: 1) payment of restitution of $2,058 to the Client Security Fund and $100 to a client; 2) filing for two years of semi- annual reports regarding his psychological condition; 3) on reinstatement, monitoring of his practice by an attorney approved by the Office of Lawyer Regulation (OLR) for two years; and 4) on reinstatement, filing for two years of quarterly reports on his trust account. The court also ordered Jacobson to pay the $18,705.19 costs of the disciplinary proceeding.

    The court found 12 counts of misconduct relating to Jacobson's representation of six clients. In one matter, Jacobson represented a client regarding a personal injury claim. After withholding $2,058 from the client's settlement to pay six health care providers, Jacobson failed to disburse those proceeds to the care providers or notify them of the settlement, violating SCR 20:1.15(b), currently SCR 20:1.15(d)(1). Instead, Jacobson disbursed $2,000 to himself, thereby converting the funds, violating SCR 20:8.4(c). Jacobson's failure to pay the care providers also harmed the client's credit and resulted in the client having to pay approximately $100 in interest for late payments. The Client Security Fund (now known as the Wisconsin Lawyers' Fund for Client Protection) ultimately reimbursed the client for the $2,058 converted by Jacobson. During the investigation, Jacobson led the OLR to believe that he was unaware that the care providers had not been paid and misrepresented to the OLR that no one had contacted him about the lack of payment, despite the fact that the client and a third party had contacted him about the problems, violating SCR 20:8.4(f) and SCR 22.03(6).

    In a second matter, Jacobson represented a client in both criminal court and family court regarding a failure to pay child support. In March 2000, the client gave Jacobson $4,000. Jacobson disbursed the entire amount to himself for fees, without notice to the client. The client subsequently learned that the funds were no longer in trust and requested an accounting, which Jacobson failed to provide, violating SCR 20:1.15(b), currently SCR 20:1.15(d)(1), and SCR 20:1.4(a). In addition, Jacobson misrepresented to the OLR that he had sent the client a bill, although in fact he had not prepared a bill until after the OLR's investigation commenced, violating SCR 20:8.4(c).

    In a third matter, Jacobson deposited a $3,500 fee advance into his trust account on May 4, 2000. Before the deposit was made, the account was overdrawn by approximately $500. Two days after depositing the advance, Jacobson had a heart attack and consequently performed no services for the client. Since he had not reimbursed the account for the $500 overdraft or the related service charge before refunding the client's $3,500 advance, Jacobson used funds belonging to his client to cover the shortfall, violating SCR 20:1.15(a), currently SCR 20:1.15(b)(1).

    In the fourth matter, Jacobson failed to pay $890 to a client's care provider from the proceeds of a July 2000 personal injury settlement, despite receiving several calls from the care provider. Instead, Jacobson used a portion of the settlement proceeds to make the $3,500 refund noted in the third matter, violating SCR 20:8.4(c). While Jacobson did issue a check to this provider, there were insufficient funds in the trust account to cover the check, and there is no evidence that the provider ever received or negotiated it. Further, Jacobson never notified the provider of his receipt of the funds, violating SCR 20:1.15(b), currently SCR 20:1.15(d)(1). More than a year later, during the OLR investigation, Jacobson paid the $890 to this provider.

    In the fifth matter, Jacobson failed to notify a subrogated worker's compensation carrier of his receipt of $20,000 to which the carrier was entitled, and he did not pay the carrier for more than three months, violating SCR 20:1.15(b), currently SCR 20:1.15(d)(1). In addition, Jacobson failed to reconcile his trust account in the year preceding the $20,000 payment, violating SCR 20:1.15(e), currently SCR 20:1.15(f)(1)g.

    In the sixth matter, Jacobson failed to communicate the basis or rate of his fee when he began representing a couple in 1996 regarding a dispute with a home builder, violating SCR 20:1.5(b). He also failed to provide the couple with a copy of a demand letter that he had purportedly sent to the builder. When the clients subsequently made repeated requests for an accounting of the $2,000 that they had paid him, Jacobson never provided one, violating SCR 2:1.4(a).

    The OLR originally recommended a two-year suspension, restitution, and trust account supervision. The referee initially recommended an 18-month suspension with those conditions. The court subsequently remanded the proceeding for submission of mitigating evidence regarding Jacobson's physical and mental condition. After hearing testimony from Jacobson's psychiatrist and other witnesses, the referee concluded that most of the misconduct was causally connected with Jacobson's May 2000 heart attack and his diagnosed depression, and the referee reduced the length of her recommended suspension to 90 days. Both parties appealed.

    The court agreed with the OLR that some of the misconduct, including the conversion of more than $2,000, had occurred before the heart attack, and the court found significant Jacobson's ability to serve some of his clients free of misconduct during his medical difficulties. The court nevertheless adopted the referee's conclusion that there was a direct causal connection between Jacobson's depression and some of his misconduct. Ultimately, the court determined that Jacobson's "serious and persistent failure to comply with Rules" merited a suspension in excess of the referee's amended recommendation, and it imposed a five-month suspension.

    Disciplinary Proceeding against Paul Kasprowicz

    On Dec. 21, 2004, the Wisconsin Supreme Court publicly reprimanded Paul Kasprowicz, Waukesha, for having committed 16 counts of professional misconduct involving six separate client matters, as alleged in a complaint filed by the OLR. Disciplinary Proceedings Against Kasprowicz, 2004 WI 151. Kasprowicz also was ordered to pay the $5,760.16 costs of the proceeding.

    A referee and the court found that Kasprowicz's misconduct included four counts of neglect; three counts of failure to properly communicate with his client; and one count each of incompetence, acting outside the scope of the representation, failing to promptly turn over a client's file to successor counsel, and charging a percentage fee in an estate in violation of a state statute and case law. Further, Kasprowicz did not timely cooperate with the OLR's investigation in five of the six matters. The OLR had sought a 60-day suspension.

    The referee found that the misconduct, while serious, was not malicious or intentionally deceptive; that at least two of the counts were based on Kasprowicz's apparent misunderstanding of the law; that Kasprowicz's primary problem was in failing to act and then avoiding his clients when questioned about that failure; that his conduct was not intended to - and did not - provide him with any monetary gain or benefit; and that his behavior was a result of the medical and emotional problems he was experiencing over a two-year period, as borne out by medical and other evidence received at the disciplinary hearing.

    Disciplinary Proceeding against Joe E. Kremkoski

    On Dec. 21, 2004, the Wisconsin Supreme Court publicly reprimanded Joe E. Kremkoski, Racine, for having committed five counts of professional misconduct involving two separate client matters, as alleged in a complaint filed by the OLR. Kremkoski also was ordered to obtain continuing legal education credits focusing on ethics education each year for the next three years and to pay the $4,116.33 costs of the proceeding. Disciplinary Proceedings Against Kremkoski, 2004 WI 150.

    A referee and the court found that Kremkoski's misconduct included representing a client in the same or a substantially related matter in which the person's interests were materially adverse to the interests of a former client; failing to hold money in trust; failing, on termination of representation, to refund an unearned advance fee payment; failing to act with reasonable diligence and promptness in representing a client; and failing to keep a client reasonably informed about the status of a matter and comply with reasonable requests for information.

    The referee recommended a private reprimand, concluding that it was an appropriate disciplinary response to Kremkoski's misconduct, giving recognition to Kremkoski's claim that he was under stress during the time of his misconduct.

    Although no appeal was filed, the supreme court imposed a public reprimand, as originally recommended by the OLR. The court considered Kremkoski's 1997 receipt of a private reprimand for neglect of a client matter, the serious nature of Kremkoski's instant misconduct, and the possibility of deterring Kremkoski and others from engaging in similar misconduct in the future. The court emphasized that stress did not explain Kremkoski's failure to appreciate the serious conflict of interest he faced in representing a client in the same or a substantially related matter in which the person's interests were materially adverse to the interests of a former client.

    Disciplinary Proceeding against Lynn Morrissey

    On Jan. 14, 2005, the Wisconsin Supreme Court suspended the law license of Lynn Morrissey for 60 days for professional misconduct arising from her handling of two client matters. Disciplinary Proceedings Against Morrissey, 2005 WI 2.

    In the first matter, Morrissey was retained to represent a client in the sale of real estate in Washington County. The client's former wife had previously been given a lien on the real estate by a Colorado divorce order. In July 2001, Morrissey sent a draft satisfaction of lien to the client's former wife and requested that she sign it. Morrissey assured the client's former wife that the satisfaction would not be recorded until the check had been sent. The client's former wife signed the satisfaction and sent it to Morrissey, relying on the representation that the satisfaction would not be filed until payment had been made. Morrissey recorded the satisfaction and proceeded with the real estate sale and closing without providing for payment to the client's former wife. The proceeds were instead disbursed to Morrissey's client.

    By representing to the client's former wife that the satisfaction of lien would not be filed until payment of the lien amount was mailed, by receiving and filing the satisfaction of lien prior to remitting payment, and by failing to include or provide for payment of the lien from the proceeds of the sale, Morrissey engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation, in violation of SCR 20:8.4(c).

    In the second matter, Morrissey represented a client in a divorce. At the final hearing the court directed Morrissey to file findings of fact, conclusions of law, and a judgment. On July 15, 2003, a family court commissioner clerk notified Morrissey that the findings were insufficient and faxed Morrissey a list of provisions to include in the findings. On Sept. 18, 2003, Morrissey was again faxed a list of mandatory provisions to include in the findings. Morrissey failed to submit the completed findings until Dec. 22, 2003, more than seven months after the final divorce hearing, five months after the clerk had first faxed her a list of the missing provisions, and only after the guardian ad litem had written the court and the court had set three show cause dates.

    By failing to file acceptable findings of fact, conclusions of law, and a judgment in the client's divorce with reasonable promptness, Morrissey violated SCR 20:1.3.

    Morrissey also willfully failed to respond to questions relating to both grievances and was thus found to have violated SCR 22.03(2), SCR 22.03(6), and SCR 20:8.4(f).

    Disciplinary Proceeding against Seth P. Hartigan

    On Jan. 19, 2005, the Wisconsin Supreme Court suspended the law license of Seth P. Hartigan, formerly of Milwaukee, for six months, for Hartigan's commission of six counts of professional misconduct involving two separate client matters, as alleged in a complaint filed by the OLR. Hartigan also was ordered to pay the $8,035.53 costs of the proceeding. Disciplinary Proceedings Against Hartigan, 2005 WI 3.

    A referee and the court found that Hartigan's misconduct included engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation by accepting a laptop computer as payment for legal fees and by retaining the laptop for his own personal benefit; falsely informing the OLR during the course of its investigation that his employer was aware he had accepted a laptop as payment for legal services; and failing to take steps to the extent reasonably practicable to protect his client's interests, by failing to inform or send a copy of his motion to withdraw to his client. Hartigan's misconduct also included engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation by representing to the court in his motion to withdraw that his client failed to abide by the terms of the written fee agreement when he knew this information to be false; failing to explain a matter to his client to the extent reasonably necessary to permit the client to make informed decisions regarding her representation in her parole hearing and pro se cases; and failing to comply promptly with the client's reasonable requests for information, by failing to return her papers to her for more than two months despite multiple requests that he do so.

    The referee recommended a six-month suspension, emphasizing that Hartigan breached his duties to many parties, including his law firm, a colleague at his law firm, his client, tribunals before which he was appearing, and the OLR. The referee stressed that Hartigan attempted more than once to lie his way out of the troublesome situations; caused harm to one of his clients, who was arrested and jailed probably by reason of Hartigan's false statements to a court; caused harm to another client, who was imprisoned and desperate for legal services; and made intentionally false statements and submitted false and misleading evidence to the OLR's investigators.

    The supreme court imposed the recommended six-month suspension, characterizing Hartigan's misconduct as "serious infractions of the rules governing lawyers' professional behavior and responsibilities."

    Hearing to Reinstate Gerald M. Schwartz

    On May 12, 2005, at 10 a.m., in Room 260-A, State Office Building, 819 N. Sixth Street, Milwaukee, a public hearing will be held before Referee Kathleen Callan Brady on the petition of Gerald M. Schwartz, Glendale, 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 for reinstatement.

    Schwartz's law license, which had been suspended in the mid-1980s for 90 days, was suspended again for 60 days in 1993 for misconduct consisting of Schwartz's failure to keep his clients advised of significant developments in a personal injury action, acting contrary to his clients' explicit direction in seeking a settlement of their claim, failure to timely conclude a settlement, and failure to promptly deliver the clients' file to successor counsel. Disciplinary Proceedings Against Schwartz, 174 Wis. 2d 312, 496 N.W.2d 605 (1993).

    Without having been reinstated, Schwartz's law license was suspended for 18 months in 1995 when Schwartz was found to have failed to pursue a client matter with reasonable diligence and promptness, failed to communicate with his clients regarding the matter, failed to provide an accounting of his work and refund the unearned portion of his retainer, and failed to take appropriate steps to protect the clients' interests on terminating his representation. In another matter, Schwartz failed to appear on his client's behalf in an action; failed to respond to letters from opposing counsel; failed to notify his client, opposing counsel, and the court of his administrative suspension from the practice of law for failure to comply with continuing legal education requirements; and failed to promptly withdraw from the client's representation. In addition, Schwartz continued to practice law while suspended, failed to respond to numerous inquiries from the Board of Attorneys Professional Responsibility and the district committee investigating his conduct, and made false statements of material fact in the course of that investigation. Disciplinary Proceedings Against Schwartz, 193 Wis. 2d 157, 532 N.W.2d 450 (1995).

    In the instant reinstatement proceeding, Schwartz must demonstrate by clear, satisfactory, and convincing evidence that, among other things, he has not practiced law or engaged in certain law-related activities violative of SCR 22.26(2) during the suspension; 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 on 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 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.

    Schwartz also must demonstrate by clear, satisfactory, and convincing evidence that he has the moral character to practice law in Wisconsin and that he has fully complied with the terms of the suspension and with the requirements of SCR 22.26.

    Relevant information may be provided to or obtained from OLR Investigator Melody Rader-Johnson or OLR Litigation Counsel William J. Weigel, 110 E. Main St., Suite 315, Madison, WI 53703; toll free (877) 315-6941.

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