Wisconsin Lawyer
Vol. 79, No. 4, April
2006
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.
Disciplinary proceedings
against Gino M. Alia
The Wisconsin Supreme Court suspended the law license of Gino M.
Alia, Kenosha, for 90 days, effective March 14, 2006. Alia also was
ordered to pay the $22,174.29 cost of the proceeding. Disciplinary
Proceedings Against Alia, 2006 WI 12.
Alia represented the plaintiff in an action in circuit court. At
trial, Alia had an expert witness identify an exhibit as a copy of the
expert's report, even though Alia had made white-out changes to the
exhibit. Thus Alia knowingly offered false evidence in the form of the
expert's false testimony, contrary to SCR 20:3.3(a)(4). Further, Alia
used the exhibit, which he had changed from the original expert report,
and held out the exhibit to the court, the jury, and the expert witness
as an accurate copy of the original report. Alia's conduct also violated
SCR 20:3.4(b), which prohibits an attorney from falsifying evidence, or
counseling or assisting a witness to testify falsely.
In altering the exhibit before the expert testified, and by making
further redactions after the expert had testified and identified the
altered report as the expert's own work, Alia obstructed adverse
counsel's access to evidence by destroying or concealing information in
a document that had potential evidentiary value. Thus Alia violated SCR
20:3.4(a), which prohibits an attorney from unlawfully obstructing
another party's access to evidence or unlawfully altering, destroying,
or canceling a document having potential evidentiary value. The same
conduct violated SCR 20:8.4(c), which prohibits conduct involving
dishonesty, fraud, deceit, or misrepresentation.
Alia violated SCR 20:3.3(a)(1), which provides that a lawyer shall
not knowingly make a false statement of fact or law to a tribunal, when
he falsely stated to the circuit court, and led all parties to believe,
that he had only made alterations to the exhibit in advance of the
expert's testimony, and by claiming that all changes in the expert's
report were made with the expert's knowledge and approval, when Alia's
statements were untrue and he further altered the exhibit between the
trial's first and second days.
Alia also violated SCR 20:8.4(c) by inducing the expert to
authenticate a report that Alia knew was not an accurate copy; falsely
accusing adverse counsel and/or adverse counsel's client of fabricating
an exhibit that represented adverse counsel's copy of the expert's
report; and falsely accusing adverse counsel of being untruthful with
the circuit court.
Alia had no prior discipline.
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Disciplinary Proceedings against
Michael G. Artery
On Feb. 7, 2006, the Wisconsin Supreme Court released its opinion
suspending the law license of Michael G. Artery, 59, Delavan, for 60
days.
The disciplinary case related to Artery's handling of six client
matters, all of which had involved Artery's being appointed to do
appellate work by the Office of the State Public Defender. The supreme
court found that Artery had failed to communicate with three of the
clients, contrary to SCR 20:1.4(a); that he neglected five of the
clients' cases, contrary to SCR 20:1.3; that he failed to keep one of
the clients informed on case strategy, contrary to SCR 20:1.2(a); and
that he failed to respond to the Office of Lawyer Regulation's (OLR)
inquiries in three of the investigations, contrary to SCR 21.15(4) and
22.03(2), (4), and (6). Disciplinary Proceedings Against Artery,
2006 WI 11.
Unbeknownst to the court, Artery passed away on the evening of Feb.
6, 2006, in a Milwaukee hospital. However, the supreme court's
disposition of a proceeding in which public discipline is imposed must
be published in the Wisconsin Lawyer, pursuant to SCR
22.23(1).
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Disciplinary Proceedings against
Michael A. Gral
On Feb. 27, 2006, the Wisconsin Supreme Court summarily suspended the
law license of Michael A. Gral as of that date and until reinstated by
the court. OLR v. Gral, No. 2006XX50-D. Gral agreed to the
summary suspension of his law license pending final disposition of the
disciplinary proceedings against him.
The OLR sought the summary suspension pursuant to SCR 22.20,
following Gral's entering a guilty plea to one count of mail fraud in
U.S. v. Gral, No. 2:05-CR-00013-CNC, pursuant to a plea agreement
with the U.S. government. In his Offer of Proof filed with the U.S.
District Court for the Eastern District of Wisconsin, Gral acknowledged
participating in a scheme with Robert G. Brownell, an employee of one of
Gral's client's, that "had the effect of knowingly placing his own
financial interests ahead of and to the detriment of [several of Gral's]
clients, and knowingly depriving them of his honest services, causing
losses."
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Disciplinary Proceedings against
Richard J. Krueger
On Feb. 22, 2006, the Wisconsin Supreme Court suspended the law
license of Richard J. Krueger, 75, Oconto, for 60 days effective March
8, 2006, and ordered Krueger to pay the $20,489.37 cost of the
disciplinary proceeding. Disciplinary Proceedings Against
Krueger, 2006 WI 17. The case involved Krueger's representation of
an 82-year-old client in a Chapter 7 bankruptcy action.
At the time the bankruptcy petition was filed in 1999, the client
owed Krueger $7,384 in legal fees. Krueger failed to list this debt on
the bankruptcy schedules he prepared for the client and failed to obtain
the client's written consent to a potential conflict of interest. At the
first meeting of creditors, the bankruptcy trustee asked Krueger's
client if he had listed all of his debts, and the client responded that
he had. Krueger was present and said nothing.
After the client was discharged in bankruptcy, Krueger continued to
represent him regarding three secured creditors who had filed adversary
proceedings. While Krueger negotiated with two of those creditors,
indicating that the client was unable to pay more than 60 percent of his
debt to them, Krueger received $40,000 from the client, deposited
$28,000 to his client trust account for the purpose of paying the
creditors, and applied the $12,000 balance to his own current and past
legal fees, including the $7,384 that should have been listed and was in
fact discharged in the bankruptcy. When the OLR investigated, Krueger
initially misrepresented to the OLR that the amount the client owed him
was less than $500 at the time of the bankruptcy and that he had never
been paid that amount.
Although Krueger died subsequent to the court's issuance of its
decision, publication in the Wisconsin Lawyer is required by SCR
22.23(1).
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Disciplinary Proceedings against
Thomas A. Fadner II
On Feb. 23, 2006, the Wisconsin Supreme Court suspended the law
license of Thomas A. Fadner II, Oshkosh, for nine months, effective
March 30, 2006. The court also ordered Fadner to pay the $1,411.88 cost
of the disciplinary proceeding. Disciplinary Proceedings Against
Fadner, 2006 WI 18.
Fadner's misconduct consisted of billing the Office of the State
Public Defender (SPD) for third-party photocopying charges when the
copies actually were made on his own copy machine, and for charging the
SPD for sales tax on those copies when he did not pay the sales tax to
the Wisconsin Department of Revenue during the time in question. Fadner
knew that under SPD rules, in-house copying charges were not
reimbursable. The court adopted the referee's finding that Fadner's
conduct violated SCR 20:8.4(c), which prohibits conduct involving
dishonesty, fraud, deceit, or misrepresentation. Fadner also violated
former SCR 20:1.15(a) and (b), effective before July 1, 2004, when, on
at least three occasions, Fadner did not timely deliver to an
investigator funds paid to him by the SPD for the investigator's fees
and did not deposit the funds belonging to the investigator in his trust
account.
Fadner previously received a private reprimand in 1998.
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Public Reprimand of Frederick
Voss
The OLR and Frederick J. Voss, 53, Rhinelander, 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 Feb. 4, 2006, in
accordance with SCR 22.09(3).
The misconduct leading to the public reprimand occurred during Voss's
representation of a client in a criminal matter. In February 2002, Voss
was appointed to represent the client in several pending criminal
matters. Among the charges pending against the client in Marathon County
on March 23, 2002, were counts of conspiracy to commit first-degree
intentional homicide. The alleged intended victim of the conspiracy was
a woman (B.W.) with whom the client had had a personal relationship. In
connection with the conspiracy to commit homicide charges, a Marathon
County circuit court judge had entered an Order for No Contact
Provision, in which the client was ordered to have no contact with six
named persons, including B.W. and a potential witness in one of the
pending cases (J.O.). The order stated, in relevant part, "This includes
no direct physical or indirect contact by telephone, writing of any
kind, and includes no contact with the above-named persons through other
persons, including any third party contact." The order also indicated
that violations were punishable by criminal contempt and revocation of
jail privileges. The order remained in effect on March 23, 2002.
On March 23, 2002, Voss arranged for his incarcerated client to meet
with B.W. and J.O., both of whom also were incarcerated on that date, in
a visiting room at the Marathon County Jail. Voss did not inform the
jailer of the no-contact order. Although Voss stated he did not read the
no-contact order closely enough to recall those who were subject to it,
the Seventh Circuit Court of Appeals in a related case opinion and the
District 16 Committee assigned to investigate this matter both concluded
that Voss knew there was a court order prohibiting the client from
contacting several persons, including B.W. and J.O.
By arranging for his client to meet with B.W. and J.O. in violation
of the no-contact order issued by the Marathon County circuit court
judge, Voss violated SCR 20:1.2(d), which states, in relevant part, "A
lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent." By failing to
disclose to jail personnel the material fact of the existence of the
no-contact order, when disclosure was necessary to avoid assisting his
client in a criminal act (the violation of the no-contact order), Voss
violated SCR 20:4.1(b), which states, in relevant part, "In the course
of representing a client a lawyer shall not knowingly fail to disclose a
material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client."
Voss had no prior discipline.
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Public Reprimand of Owen R.
Williams
The OLR and Owen R. Williams, 67, Amery, agreed to the 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 Feb. 24, 2006, in accordance with SCR 22.09(3).
Williams represented a client in a dispute with a truck dealer/repair
shop (the dealer). The client owned a dump truck and his livelihood
depended on his use of the truck. The client had two outstanding bills
with the dealer, which the client disputed. In September 1999 the dealer
sued the client in small claims court for payment of the first bill. In
December 1999 the dealer filed a civil suit for payment of the second
bill. The client believed Williams was going to file a counterclaim
against the dealer. Williams said he did not agree to file a
counterclaim.
Williams represented the client in the small claims matter and argued
faulty workmanship, but the court ruled in favor of the dealer, who
received a money judgment and a writ of execution against the truck
based on the judgment.
Before the trial in the small claims matter, the client signed the
title to his truck and gave it to Williams, who in turn transferred it
to a friend and business partner who owned an automobile and truck
repair shop. The friend paid off the client's truck loan and repaired
the truck, making several other expenditures to improve the truck's
condition.
The client said that Williams told him he would use the title to
"bond" the truck so the client could continue using it to earn a living
until the situation with the dealer was resolved. The client said
Williams explained that his fee of $2,500 would be taken out of the
bond. The client did not understand how the "bond" would work, but he
thought the money to cover it and Williams' fee ultimately would come
from the money obtained from winning the counterclaim. It was not the
client's understanding when he gave the signed truck title to Williams
that Williams would transfer ownership of the truck to a third
party.
Williams said he told the client that his friend would take title to
the client's truck, pay for any needed repairs, and pay the remaining
balance on the client's truck loan. Williams said he explained to the
client that the client could then set up a repayment plan with the
friend and that the client would also owe the friend $2,500 for
Williams' attorney fees. Williams told the client that the transaction
was like bonding the truck. The friend signed a promissory note
promising to pay Williams $2,500 pursuant to a specific payment
schedule, but Williams never asked for or received any payments pursuant
to the note. Williams did not memorialize in writing the terms of his
agreement with the client or the client's agreement with the friend. The
only written sales agreement between the client and the friend was the
executed motor vehicle title.
In February 2000, the dealer filed an amended complaint in the second
lawsuit adding Williams' friend as a defendant. The amended complaint
alleged that the transfer of the truck to the friend was fraudulent and
that the friend knew of the plaintiff's claim in the small claims
lawsuit.
Williams continued to represent the client and also represented the
friend in the dealer's second lawsuit. The client sent letters to
Williams dated Feb. 10 and 17, 2000, asking Williams to respond to
several questions, including when a counterclaim would be filed, but
Williams did not respond to the letters. The client tried to call
Williams several times before and after sending the February letters,
but says he never received a response. Subsequently, in April or May
2000, the client retained successor counsel to represent him in the
dealer's second lawsuit.
Williams continued to represent the friend in the dealer's second
lawsuit until he secured an order dismissing the friend as a defendant
in June 2001, in exchange for the friend posting alternative security to
the truck, to be used if the dealer prevailed. The friend paid the
judgment from the small claims matter and obtained possession of the
truck.
Williams did not consult with or obtain a written conflict waiver
from the client with respect to Williams' dual representation of the
friend in the second lawsuit or to his representation of the friend in
the second lawsuit after his representation of the client ended, nor did
Williams obtain conflict waivers from his friend.
The dealer's second lawsuit was suspended in the fall of 2001 while a
bankruptcy action filed by the client was pending. When the matter
resumed in 2002, a counterclaim filed by the client's successor counsel
was dismissed due to fact and issue preclusion. Judgment in favor of the
dealer was entered in November 2002.
Except for using the truck for personal reasons on a few occasions,
the friend has not used the truck since he obtained possession of
it.
After the friend obtained the truck, neither he nor Williams
contacted the client or his successor counsel about what the client
would need to do to regain title to the truck. Likewise, neither the
client nor his attorney contacted Williams or the friend about
reclaiming the truck.
Williams violated SCR 20:1.4(b) by failing to adequately explain to
the client the nature and terms of the transaction with the friend, by
failing to reduce the agreement between the client and the friend to
writing, and by failing to ensure that the client understood why
Williams asked for the truck title.
Williams failed to adequately consult with the client to ensure that
the client understood Williams' decision not to file a counterclaim in
the small claims matter, and failed to consult with the client about the
requirements for and appropriateness of a counterclaim subsequent to the
small claims judgment, contrary to SCR 20:1.2(a), which requires, in
part, that a lawyer consult with a client as to how to pursue the
objectives of the representation.
Williams violated SCR 20:1.4(a) by failing to respond to at least two
letters from the client requesting responses to specific questions,
including a question about when a counterclaim would be filed, and by
failing to respond to the client's telephone calls.
Williams violated SCR 20:1.7(b) by representing the client in a
business transaction with Williams' friend and business partner, from
whom Williams had received a promissory note for the client's attorney
fees, without consulting with the client and obtaining the client's
written consent to the potential conflict.
Williams violated SCR 20:8.4(c) by stating in a question to a witness
at the small claims trial that the client owned the truck, by failing to
disclose to the court that the truck's title had been conveyed to the
friend, and by using the friend as an expert witness in a matter
regarding a truck that the friend, in fact, owned.
By representing the client while he represented his friend in the
dealer's second lawsuit, without obtaining written consent from
either the client or the friend for the dual representation, Williams
violated SCR 20:1.7(b).
By continuing to represent his friend in the second lawsuit when he
had formerly represented the client in the same lawsuit, without
obtaining the client's written consent, Williams violated SCR 20:1.9(a),
governing conflicts of interest with former clients.
Williams had no prior discipline.
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Public Reprimand of Kathleen A.
Sinclair
Kathleen A. Sinclair, Elm Grove, was reprimanded for her conduct in
two matters. In the first matter, she was retained to assist F.B. with
his attempt to obtain postconviction relief. F.B. had moved to suppress
evidence resulting from a traffic stop, but he later withdrew the motion
and pleaded guilty.
Sinclair promptly received all the transcripts, except those for the
hearing at which F.B. waived his preliminary hearing. Later, F.B. sent
two letters to Sinclair, who did not respond. F.B. then wrote to the
OLR, stating that he had not heard from Sinclair since her
appointment.
Sinclair responded, stating that she intended to file a motion with
the court of appeals for an extension to seek postconviction relief.
F.B. asked that Sinclair contact him to discuss whether she was going to
assist him. Sinclair and F.B. decided to move to withdraw his plea based
on trial counsel's failure to pursue the suppression motion.
The extension was granted. Before filing the motion to withdraw the
plea, Sinclair failed to interview witnesses and trial counsel. She
provided no affidavits with the motion. The court denied the motion,
stating that the motion was "completely conclusionary and unsupported by
any affidavit from the defendant as to what he understood, or failed to
understand, concerning the withdrawal of the suppression motion." The
court also found that there was not "an adequate showing that a motion
to suppress would have been successful." Sinclair had 20 days in which
to file a motion for reconsideration, but she allowed F.B.'s rights to
expire.
The OLR directed Sinclair to respond to F.B.'s allegations. After
extensions had passed without sending a response, Sinclair sent a
facsimile to the OLR. She stated that she previously sent her response,
kept no paper copies, and needed to recover the information from her
computer, and that her computer had crashed. Subsequently, she provided
a response dated two months after her computer allegedly had crashed.
Her response also made assertions that were contradicted by other
witnesses.
By filing the motion to withdraw F.B.'s plea without developing and
providing a factual basis, Sinclair violated SCR 20:1.1. By failing to
act on F.B.'s case for one year and acting only after being contacted by
the OLR, and by allowing F.B.'s postconviction rights to lapse, Sinclair
violated SCR 20:1.3. By failing to respond to F.B.'s letters or to
otherwise communicate with him, Sinclair violated SCR 20:1.4(a). By
failing to respond to or cooperate with the OLR, Sinclair violated of
SCR 20:8.4(f), 21.15(4), and 22.03(6).
In the second matter, Sinclair was retained to represent Q.M. on
appeal. She filed a notice of appeal on Dec. 24, 2002, but allowed the
appeal to become delinquent. She failed to file the brief despite
receiving extensions and two orders from the court of appeals. She
violated SCR 20:1.3 and SCR 20:3.4(c) for knowingly disobeying an
obligation under the rules of a tribunal.
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