Vol. 82, No. 12, December 2009
Public reprimand of Timothy J. Carmichael
The Office of Lawyer Regulation (OLR) and Timothy Carmichael, Sun Prairie, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement and issued the public reprimand in accordance with SCR 22.09(3).
Carmichael was charged with and convicted of fourth-offense operating while intoxicated (OWI), a misdemeanor. His sentence included 60 days in jail with Huber privileges and revocation of his driver’s license for 36 months.
Carmichael failed to inform the OLR or the supreme court clerk of his conviction, as he was required to do under SCR 21.15(5).
By engaging in conduct leading to a conviction of fourth-offense OWI, Carmichael violated SCR 20:8.4(b), which provides it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. By failing to report his conviction to the OLR and to the supreme court clerk, Carmichael violated SCR 21.15(5), which requires an attorney found guilty or convicted of any crime to notify the OLR and the supreme court clerk within five days after the finding or the conviction, whichever occurs first. Violations of SCR 21.15(5) are enforced under the Rules of Professional Conduct via SCR 20:8.4(f).
Carmichael received a public reprimand in 2002 for his third OWI conviction, obstructing police officers during their investigation, and making false statements.
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Disciplinary proceedings against Michael C. Trudgeon
On Oct. 20, 2009, the Wisconsin Supreme Court publicly reprimanded Michael C. Trudgeon, Beloit, for his professional misconduct in two client matters. The court also ordered Trudgeon to pay the full cost of the disciplinary proceeding. Disciplinary Proceedings Against Trudgeon, 2009 WI 96.
In the first matter, a woman hired Trudgeon to defend her in a foreclosure action and to pursue a harassment or disability discrimination suit against the entity that had filed the foreclosure action. Trudgeon was aware that the client had been diagnosed with multiple sclerosis and that her condition and medications caused memory problems. Trudgeon violated former SCR 20:1.5(b) by failing to adequately explain the rate and basis of his fee to the client before or within a reasonable time after commencing the representation. He violated SCR 20:1.3 by failing to appear for a scheduled hearing in the foreclosure action. He violated former SCR 20:1.4(b) by failing to explain matters to the client to the extent reasonably necessary to permit her to make informed decisions regarding the representation. Trudgeon violated SCR 20:1.16(a)(3) by failing to file a motion to withdraw as the client’s counsel in the foreclosure action after he considered the representation to have ended.
In the second matter, a man and his fiancée hired Trudgeon to represent the man in an action filed against him by a subcontractor who worked on the man’s home. Trudgeon violated former SCR 20:1.4(a) by failing to respond to reasonable requests for information from the client and his fiancée, failing to notify them that a default judgment had been entered against the client, and failing to timely provide the client with an order for financial disclosure and the required disclosure forms, and he violated SCR 20:1.4(b) by failing to explain matters to the client to the extent reasonably necessary to permit him to make informed decisions regarding the representation. Trudgeon violated SCR 20:1.3 by assuming the scheduled trial date could be continued without confirming that assumption with the court or obtaining opposing counsel’s agreement to a continuance before the trial, failing to timely research the procedures for appealing or filing a motion to reopen following a default judgment, failing to prepare and file a written answer on the client’s behalf, and failing to obtain opposing counsel’s consent for the client to file the financial disclosure forms after the ordered date. Trudgeon violated SCR 20:8.4(c) by causing the client and his fiancée to believe that Trudgeon was attempting to schedule the case for trial and that the case remained open after a default judgment had been entered against the client, and by implying the court considered the plaintiff’s evidence and decided the case against the client on the merits, when a default judgment had been entered against the client because of Trudgeon’s failure to appear for the hearing and failure to file a written answer.
Trudgeon had no prior discipline.
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Disciplinary proceedings against Daniel F. DeMaio
On Oct. 1, 2009, the Wisconsin Supreme Court publically reprimanded Daniel F. DeMaio, Hudson, for professional misconduct in his representation of and interactions with one client. DeMaio also was ordered to pay the $5,290.22 cost of the disciplinary proceeding. Disciplinary Proceedings Against DeMaio, No. 2008AP1119D.
In October 2004, the St. Croix County Circuit Court appointed DeMaio to represent a woman in criminal proceedings. During the course of the criminal proceedings, the woman hired DeMaio on a private-pay basis to represent her in debt-relief matters. The client’s home, owned by the woman and her estranged husband, was in foreclosure. DeMaio filed a Chapter 13 personal bankruptcy petition in the client’s name with the sole intent of preserving any equity the client had in the property while she attempted to sell it. Chapter 13 is designed for individuals with employment income, and his client had no income when the petition was filed.
After DeMaio filed the Chapter 13 bankruptcy petition and submitted $700 to the trustee, the bankruptcy court dismissed the petition because a bankruptcy plan had not been filed. The trustee sent DeMaio a check for $700 made out to the client. Without providing written notice to the client that he had received the refund, DeMaio deposited the $700 into his own account, in violation of former SCR 20:1.15(d)(1) (effective before July 1, 2007), which required a lawyer to promptly notify the client in writing on receipt of property in which the client has an interest.
While continuing to represent his client in debt-relief matters, DeMaio became interested in purchasing his client’s property. DeMaio never discussed with his client, advised her in writing, or obtained her written waiver concerning an actual or potential conflict of interest. DeMaio’s failure to address the conflict of interest violated former SCR 20:1.7(b) (effective before July 1, 2007), which stated, “A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s … own interests, unless: (1) the lawyer reasonably believes that representation will not be adversely affected; and (2) the client consents in writing after consultation.”
While the attorney-client relationship between DeMaio and the client continued with respect to debt relief and, subsequent to the dismissal of the Chapter 13 petition, while DeMaio prepared Chapter 7 bankruptcy documents for the client and her husband, DeMaio failed to inform the client that a sheriff’s sale had been confirmed, the bank had taken possession of the property, and DeMaio had purchased the property a few weeks after the bank took possession. Given that DeMaio was advising the client regarding debt-relief matters, by failing to ascertain when the confirmation of the sheriff’s sale would occur and whether the client had any options to prevent the confirmation, DeMaio violated SCR 20:1.3, which requires reasonable diligence and promptness in representing a client.
DeMaio was privately reprimanded in 1998.
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