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    Wisconsin Lawyer
    May 01, 2006

    Private Reprimand Summary

    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 5, May 2006

    Private Reprimand Summaries

    The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, in an official State Bar publication a summary of facts and professional conduct rule violations in matters in which the OLR imposed private reprimands. The summaries do not disclose information identifying the reprimanded attorneys.

    The following summaries of selected private reprimands, imposed by the OLR, are printed to help attorneys avoid similar misconduct problems. Some of the summaries may indicate violations of the rules that were in effect prior to Jan. 1, 1988. The current rules proscribe the same types of misconduct.

    Under the new rules of lawyer regulation, a court-appointed referee will impose private reprimands with consent of the attorney. See SCR 22.09 (2000).

    Failure to Respond to Client's Requests for Information, Failure to Explain Matter to Allow Client's Informed Decision

    Violations of SCR 20:1.4(a) and 20:1.4(b)

    A woman hired an attorney to handle a speeding ticket matter. The client sent the lawyer a check for the fee enclosed in a letter in which the client requested from the attorney clarification of the point system for driver's license suspensions in Wisconsin. The client asked whether the conviction date or the violation date was the relevant date for computing points and possible driver's license suspensions. Although the attorney received and cashed the check, the attorney did not reply to the client's request for information regarding the point system. By failing to respond to the client's letter requesting that the attorney confirm the client's understanding of Wisconsin's demerit suspension system, the attorney violated SCR 20:1.4(a).

    The attorney entered a guilty plea on behalf of the client to the four-point violation. The attorney then sent the client a letter explaining the results of the hearing, but the attorney did not inform the client that her license would be suspended automatically as a result of her conviction. The client, therefore, continued to drive until she received notification of the suspension from the Wisconsin Department of Transportation three days after the effective date of the suspension.

    By not fully explaining to the client the consequences (including license suspension) of entering a guilty plea to a four-point traffic violation, and by not advising the client to take steps to prepare for such suspension, the attorney violated SCR 20:1.4(b).

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    Lack of Diligence and Failure to Communicate with Client

    Violations of SCR 20:1.3, 20:1.4(a), and 20:1.4(b)

    During the summer of 2003, an attorney was appointed by the Office of the State Public Defender (SPD) to represent a man in postconviction proceedings. The client asserted that after the initial appointment, he contacted the attorney by letter and inquired about possible ineffective assistance of counsel issues and particular constitutional issues he wanted the attorney to address. The client asserted he waited 11 months to hear from the attorney and after he heard nothing further, he contacted the SPD's office, complaining he had not heard from his attorney.

    The SPD attorney manager notified the attorney that he had received a complaint from the client concerning the attorney's representation of the client. The SPD attorney manager requested that the attorney respond to the client within 10 days and provide a copy of his response to the SPD's office. The attorney did not contact the client to discuss postconviction proceedings concerning his case, nor did he respond to the SPD attorney manager.

    Sometime during the summer of 2004, the client again notified the SPD's office that he had not heard further from the attorney. The SPD attorney manager notified the attorney that he had received a second complaint from the client alleging that the attorney still had not contacted the client, and had failed to keep the client informed as to the status of his case. The SPD attorney manager also indicated that the attorney had failed to respond to the attorney manager's own earlier letter requesting that the attorney provide the client with a status report. The SPD attorney manager again requested that the attorney respond to the client's concerns. The attorney again failed to reply to the SPD manager's letter or to contact the client.

    After the client filed a grievance with the Office of Lawyer Regulation (OLR), the attorney acknowledged to the SPD attorney manager that when the attorney initially reviewed the file and transcripts from the client's case, he determined there were no significant meritorious issues that could be argued for relief but that this information was not communicated to his client. The attorney also asserted there had been a brief discussion with the client about filing a no-merit report, but the attorney was reluctant to file such a report because the client was now intent on removing him as counsel.

    By failing to advance postconviction motions or an appeal on the client's behalf, or in the alternative, to formally close out the file with a no-merit report or any other proper notice to the client, courts, and the SPD, the attorney violated SCR 20:1.3, which states, "A lawyer shall act with reasonable diligence and promptness in representing a client."

    By failing to inform the client of the case status and by failing to respond to the client's letters asking about the status of his appeal, the attorney violated SCR 20:1.4(a), which states, "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

    By failing to communicate with the client between July 2003 (the time of his initial appointment) and August 2004 to inform the client that he thought a no-merit report should be filed in the case, the attorney failed to allow his client to make any informed decisions regarding appellate efforts and thereby the attorney violated SCR 20:1.4(b), which states, "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representations." The attorney had no prior discipline.

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    Incompetent Representation; Conflict of Interest

    Violations of SCR 20:1.1 and 20:1.7(b)

    The adult son of an elderly woman diagnosed with Alzheimer's disease contacted an attorney to come to the home shared by the man and his mother to prepare a new will and power of attorney for the woman. During the attorney's home visit, the woman told the attorney that she wanted to make a new will and leave her estate to the son with whom she lived because her other children did not need the money. The attorney did not rigorously challenge the woman's memory or properly consider any potential undue influence by the son. The mother, the son, and the attorney agreed that the attorney would return on a later date with the prepared documents.

    On the same day as the lawyer's initial meeting with the mother and son, an investigator from the county department of aging attempted a home visit based on an anonymous report that the son was not properly caring for the mother. The son barred the investigator from entering the residence. The son then called the attorney and asserted that his mother did not want to be bothered by the county. The attorney, not knowing that the son was the suspected perpetrator of the alleged elder abuse, called the county and asserted that he represented both the mother and the son, and he questioned the basis for the investigator's attempted home visit. County staff referred the attorney to the applicable statute.

    The day after the attorney's home visit, the woman was hospitalized with various ailments, and she remained hospitalized for several days. Shortly after the woman's admission, the son called the attorney to request a time for the attorney to come and have the mother sign her new will and power of attorney. The attorney met alone with the woman on the fifth day of her hospitalization, after instructing the son to leave the room. The attorney asked the woman some questions and decided that the woman was competent to sign the documents, which she did. The will nominated the son to serve as personal representative and left all of the woman's estate assets to the son. The next day a psychiatrist determined that the woman was incompetent and was an appropriate candidate for guardianship. The woman's assets were subsequently expended for nursing home care, leaving the validity of the new will a moot point.

    The attorney told the OLR that he considered both the woman and her son to be his clients. The attorney later stated that he considered the son to be an extension of his client, the mother, and that the son was looking out for the mother's interests.

    By failing to perform an adequate investigation of issues concerning the woman's competence and potential undue influence by the son, the lawyer failed to provide competent representation as required under SCR 20:1.1. The misconduct was mitigated because the attorney's actions did not lead to financial harm for the woman or her estate.

    Having already undertaken to represent the woman in preparing a will and power of attorney, by failing to consult with the woman and obtain her written consent before the attorney's representation of both the woman and her son in the matter of the department of aging investigation, the attorney violated SCR 20:1.7(b).

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    Failure to Provide Diligent Representation; Failure to Keep Clients Reasonably Informed

    Violations of SCR 20:1.3 and 20:1.4(a)

    A Wisconsin attorney agreed to assist a husband and wife (the couple) in connection with allegations that the couple's adult son had defrauded two people in another state. The lawyer entered into negotiations with the alleged fraud victims, with the couple offering to pay a certain sum to each of the victims. A signed settlement was never achieved.

    One of the alleged fraud victims filed suit in his state of residence against the couple, claiming the couple had failed to abide by settlement terms reached through negotiations with the Wisconsin attorney. The plaintiff subsequently filed a motion for default judgment, asserting that the defendants had failed to answer the civil complaint following proper service. The plaintiff's counsel provided a copy of the default motion to the Wisconsin attorney. The attorney contacted the couple, who denied that they had been served in the suit.

    The Wisconsin attorney then retained an attorney to defend the suit in the state in which it was filed. That attorney's only communications were with the Wisconsin attorney, not the defendant couple. The attorney defending the suit mishandled the case, leading to the entry of a default judgment against the couple.

    The Wisconsin attorney failed to monitor the civil case and failed to regularly contact the attorney defending the suit, and therefore violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client. The Wisconsin lawyer's failure to provide updates to his clients regarding the status of the civil case violated SCR 20:1.4(a), which requires a lawyer to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

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    Failure to Properly Supervise Nonattorney Employee; Failure to Return Unearned Portion of Fee

    Violations of SCR 20:5.3(b) and 20:1.16(d)

    A woman hired an attorney for representation in a divorce and advanced $1,500 to the attorney for the representation. Shortly after he was hired, the attorney delegated to his secretary the task of arranging for and providing notice of a hearing for a particular Monday. On the Friday afternoon before the anticipated 11:30 a.m. Monday hearing, the secretary telephoned the client and informed her of the hearing.

    Over the intervening weekend, the client left several messages for the attorney, seeking information about the hearing, asking whether any preparation was necessary for the hearing, and informing the attorney that she would have to leave work to appear. Proper notice to the adverse party was not accomplished, and the hearing was not on the court's calendar. The client, however, appeared at the time and place indicated by her attorney's office, only to learn at the courthouse that no hearing was to take place in her divorce at that time.

    The client then fired the attorney and requested the return of the full $1,500 advance, given the brevity of the representation and the absence of tangible progress in the matter. The attorney refused, claiming that the funds constituted a "nonrefundable" minimum fee. The woman sued the attorney. Shortly before trial a settlement was reached under which the attorney paid $1,250 to the woman.

    By failing to properly supervise his secretary's actions regarding scheduling and notice of the hearing, and its cancellation, the attorney violated SCR 20:5.3(b), which states, "A lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." In failing to timely refund a portion of the fee paid by the client, the attorney violated SCR 20:1.16(d), which requires an attorney, on termination of representation, to take steps reasonably practicable to protect the client's interests, including refunding any advance payment of a fee that has not been earned.

    The attorney was previously privately reprimanded for misconduct.

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    Lack of Diligence

    Violation of SCR 20:1.3

    A man was terminated from his employment. After the Equal Employment Opportunity Commission (EEOC) gave the man notice of his right to file suit in federal court, the man filed a pro se lawsuit alleging a violation of Title VII of the Civil Rights Act and a claim under 42 U.S.C. § 1983 for alleged Fourteenth Amendment violations. The client subsequently retained an attorney. This attorney handled several preliminary motions and sent the client a letter informing him that she believed discovery was "crucial" to his case, and that he should contact her to discuss how such discovery would be conducted and financed. Around this time the client decided to replace the first attorney and hire successor counsel.

    After reviewing the client's file, successor counsel indicated in a letter to the client that he anticipated receiving a summary judgment motion from the defense and all they could do was respond to that motion "as best we can." Successor counsel also informed the client that if they could obtain evidence that nonminority coworkers had the same or similar incidents of absenteeism as the client, but were not terminated, there would be a "possibility of prevailing."

    Defense counsel filed a motion in limine seeking to limit the client's claims to a violation of Title VII, and to preclude any claims that may have been pleaded under 42 U.S.C. § 1983, on the ground that the client had failed to sue the personnel review board, the proper party under § 1983. Successor counsel filed a response to the defendants' motion in limine but failed to address the issue of proper party defendants and failed to make a motion to amend the pleading to add the personnel review board as an additional party defendant in the lawsuit.

    The attorney and the client met three or four times before the trial. The client said he gave the attorney the names of five nonminority employees he thought had the same or worse attendance records than he did, but who were not terminated. The attorney denied the client gave him any such names.

    The attorney conducted no discovery before trial. At trial the attorney's only witness was the client. The only evidence the attorney presented of more favorable treatment of nonminority employees who were similarly situated was the client's testimony that he did not know of any nonminority employees who had been fired for excessive absenteeism.

    The client was not prepared to testify about his damages and the attorney did not have the client come prepared with employment records and wage statements from posttermination employment. Although the client claimed he did not violate work rules relating to absenteeism, he testified that he did not know what the rules were with regard to absenteeism.

    The attorney attempted to place into evidence a copy of an interoffice communication pertaining to a prior internal discrimination complaint made by the client. The court refused to allow the report into evidence because the attorney failed to lay the proper foundation for it. At the conclusion of the client's case, the court granted a defense motion to dismiss, stating that the plaintiff had "proven nothing."

    An appellate court affirmed the dismissal, stating that the client's testimony to the effect that he did not know of any nonminority employees who were ever fired for absenteeism fell "woefully short" of what is required to establish a prima facie case under Title VII.

    By failing to conduct discovery and engage in adequate trial preparation, including preparation of his client to testify, by failing to make a motion to amend the pleadings to add the personnel review board as an additional party defendant in the lawsuit, and by being unprepared to lay an adequate foundation for the admission of an interoffice communication, the attorney violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client.

    The attorney had no prior discipline. 110 E. Main St., Suite 315, Madison, WI 53703, (877) 315-6941, or from OLR retained counsel Richard P. Mozinski, Radosevich, Mozinski, Cashman & Olson, 903 Washington St., Manitowoc, WI 54221, (920) 684-1234.

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