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    November
    01
    2014

    Lawyer Discipline


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    Public Discipline

    These summaries are provided by the Office of Lawyer Regulation (OLR), an agency of the Wisconsin Supreme Court. The OLR assists the court in supervising the practice of law and protecting the public from misconduct by lawyers. The OLR has offices at 110 E. Main St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941. The full text of items summarized is at www.wicourts.gov/olr.

    Disciplinary Proceedings Against Jerry R. Albert

    On Aug. 20, 2014, the Wisconsin Supreme Court issued an order publicly reprimanding Jerry R. Albert, Tucson, Ariz., as discipline reciprocal to a June 25, 2013, Supreme Court of Arizona order reprimanding Albert. Disciplinary Proceedings Against Albert, 2014 WI 105.

    The Arizona reprimand resulted from Albert knowingly making a false statement by omission when he failed to tell the court that a question he planned to ask during a criminal trial was redacted to make it appear as though the defendant had contradicted herself on a material point, when she had not. Albert’s conduct violated Arizona Rules of Professional Conduct ER 3.3(a) and 8.4(d) and Rule 42 of the Rules of the Supreme Court of Arizona.

    Albert had no prior Wisconsin discipline.

    Disciplinary Proceedings Against Rebekah Mariya Nett

    On Aug. 20, 2014, the supreme court issued an order suspending the Wisconsin law license of Rebekah Mariya Nett, Inver Grove Heights, Minn., for one year as discipline reciprocal to a Nov. 27, 2013, Supreme Court of Minnesota order suspending Nett’s Minnesota law license indefinitely, with no right to petition for reinstatement for nine months. Disciplinary Proceedings Against Nett, 2014 WI 106.

    The Minnesota suspension arose from Nett’s pattern of bad-faith litigation, including making false and harassing statements toward judges and others involved in litigation against her clients, violating Minnesota Rules of Professional Conduct 3.1, 4.4(a), 8.2(a), and 8.4(d).

    Nett had no prior Wisconsin discipline.

    Petition to Reinstate Daniel W. Linehan

    A public hearing will be held at 10:30 a.m. on Tuesday, Jan. 13, 2015, and at 9 a.m. on Wednesday, Jan. 14, 2015, before referee James G. Curtis Jr. at the State Bar of Wisconsin, 5302 Eastpark Blvd., Madison, on the petition of Daniel W. Linehan, Black River Falls, 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.

    On Oct. 20, 1989, the supreme court revoked Linehan’s Wisconsin law license, effective Nov. 1, 1989, based on Linehan’s statement he could not successfully defend against allegations of professional misconduct being investigated by the Board of Attorneys Professional Responsibility (now the Office of Lawyer Regulation (OLR)) regarding his use of client trust funds for personal purposes, deposit of personal loan proceeds into his client trust account, failure to promptly pay settlement proceeds to a client and fully account to the client for those proceeds he had deposited in his trust account, failure to maintain records pertaining to his trust account and record the purpose of disbursements from that account, and chronic substance abuse.

    To be reinstated, Linehan has the burden of substantiating by clear, satisfactory, and convincing evidence that 1) he has the moral character to practice law in Wisconsin, 2) his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, 3) all representations in his reinstatement petition are substantiated, and 4) he has complied fully with the terms of the order of suspension or revocation and with SCR 22.26.

    Relevant information may be provided to or obtained from OLR investigator Lorry Eldien or OLR assistant litigation counsel Sheryl St. Ores, 110 E. Main St., Suite 315, Madison, WI 53703. The OLR’s toll-free telephone number is (877) 315-6941. St. Ores’ direct phone number is (608) 261-0695.

    Disciplinary Proceedings Against Amoun Sayaovong

    On July 30, 2014, the supreme court publicly reprimanded Amoun Vang Sayaovong, formerly of Milwaukee, for misconduct in two separate client matters. The court also ordered Sayaovong to make $2,000 restitution to the heirs of one client and $2,000 restitution to another client, as well as to pay the cost of the proceeding. Disciplinary Proceedings against Sayaovong, 2014 WI 94. The court further ordered that Sayaovong’s Wisconsin law license remain temporarily suspended pursuant to its Feb. 19, 2014, order relating to Sayaovong’s willful failure to cooperate with the OLR in the investigation of another matter.

    In the first matter, a client sought Social Security Administration (SSA) designation as payee for benefits paid to his minor children. The client paid Sayaovong a $2,000 advance. The SSA denied the client’s requests. Notices from the SSA gave the client 60 days to appeal. According to Sayaovong’s invoice, he had his client complete the appeal forms and submitted them to the SSA. He did not, however, send a copy of the appeal to the client. The invoice did not indicate any further legal services performed by Sayaovong.

    The client subsequently terminated Sayaovong’s services and filed a grievance with the OLR. Sayaovong did not respond to the OLR’s investigative communications. The court determined that Sayaovong violated SCR 20:1.3 by failing during the period of representation to advance the client’s matter and violated SCR 22.03(2) and (6), enforced via SCR 20:8.4(h), for multiple acts of noncooperation.

    In the second matter, a client hired Sayaovong to represent him in immigration removal proceedings. The man’s brother paid Sayaovong $4,000, and there was no written fee agreement. Sayaovong did not place the $4,000 into a trust account. After several months, the client terminated the representation and requested an accounting of Sayaovong’s fees and work, as well as a $2,000 refund. Sayaovong indicated that the $4,000 was a nonrefundable flat fee and he did not provide an accounting.

    The court determined that Sayaovong violated SCR 20:1.5(b)(1) and (2) by failing to have a written fee agreement setting forth the rate for his fee. The court also found that Sayaovong violated SCR 20:1.15(b)(4) and (4m) by receiving $4,000 for services to be provided and by failing to place the $4,000 advanced fee into a trust account or otherwise hold the funds in trust until earned; SCR 20:1.16(d), by failing on termination of representation to timely provide an itemized statement as to legal services rendered; and SCR 22.03(6), enforced via SCR 20:8.4(h), for failing to provide a complete supplemental response to the OLR during its investigation.

    Sayaovong had no prior discipline.

    Public Reprimand of Robert M. Goode

    The OLR and Robert M. Goode entered into an agreement for the 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) on July 24, 2014. Goode committed misconduct in three matters.

    In the first matter, a woman hired Goode to pursue a civil action against a company that performed work on the woman’s home. The case settled after the suit was filed. By failing, before the court dismissed the action, to inform the court that the company had not satisfied settlement terms, and by failing to pursue any further action against the company on behalf of the client to collect amounts owed under the settlement agreement or otherwise advance the client’s claim, Goode violated SCR 20:1.3.

    By failing to keep the client apprised as to case status and failing to return the client’s phone calls requesting information concerning case status and disbursement of monies received from the adverse party, Goode violated SCR 20:1.4(a)(3) and (4). By failing over approximately 18 months to disburse to the client the initial installment payment received from the adverse party, Goode violated SCR 20:1.15(d)(2).

    In the second matter, a married couple hired Goode to handle their Chapter 13 bankruptcy matter. By failing to respond to multiple client inquiries, and thus failing to adequately communicate with the clients regarding options available to them regarding discharge of the bankruptcy matter and in failing to follow up with them as to the specific course of action, if any, that Goode was to pursue on their behalf in connection with the bankruptcy matter, Goode violated SCR 20:1.4(a)(2), (3), and (4) and (b).

    In the third matter, Goode reported to the OLR criminal charges filed against him in the state of Oregon. Pursuant to a plea agreement that took into account Goode’s medical history as well as the lack of a serious intent to cause physical harm, Goode was convicted of one count of menacing – constituting domestic violence, a misdemeanor. By engaging in acts leading to the conviction, Goode violated SCR 20:8.4(b).

    Goode had no prior discipline.

    Disciplinary Proceedings Against Brian Campbell Fischer

    On Aug. 20, 2014, the supreme court publicly reprimanded Brian Campbell Fischer, as discipline reciprocal to a public reprimand imposed against Fischer by the Minnesota Supreme Court in September 2013. Disciplinary Proceedings Against Fischer, 2014 WI 107.

    The Minnesota reprimand arose out of Fischer’s violation of the Minnesota Rules of Professional Conduct (MRPC), consisting of failing to supervise a suspended attorney and assisting a suspended attorney in the unauthorized practice of law; failing to provide the Minnesota Director of the Office of Lawyers Professional Responsibility with timely notice of employment of a suspended attorney; using misleading advertising and law firm signs and letterhead; neglecting and failing to communicate with two clients; failing to comply with a court order; failing to return client files; failing to expedite litigation; and failing to cooperate in disciplinary investigations. These acts violated MRPC 1.3, 1.4, 1.15(c)(1) and (2), 1.16(d), 3.2, 3.4(c), 5.3(b) and (c)(1), 5.5(a), 5.8(d), 7.1, 8.1(a), and 8.4 (d), and Rule 25, Rules on Lawyer Responsibility.

    Fischer had no prior discipline in Wisconsin.

    Private Discipline

    The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, 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 summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems.

    Failure to Hold Funds in Trust

    Violation of SCR 20:1.15(b)(4)

    A man hired an attorney to represent him on drug charges. The man paid the attorney $1,000. The attorney deposited those funds into his law firm operating account. The attorney did not enter into a fee agreement with the client and did not provide the client with the notices required by SCR 20:1.15(b)(4m).

    Upon receipt of funds from the client and specifically in anticipation of providing legal representation to the client, the attorney failed to deposit the funds into his trust account. There was no evidence of an intention to make use of the alternative-fee-placement measures permitted under SCR 20:1.15(b)(4m). The attorney thereby violated SCR 20:1.15(b)(4).

    The attorney had no prior discipline.

    Failure to Ensure Compliance with Trust Account Rules

    Violation of SCR 20:5.1(a)

    The shareholder responsible for the management of a law firm’s trust account was not managing the account and the funds it held in compliance with the Rules of Professional Conduct. Another shareholder in the firm, the subject of this reprimand, denied being aware that the trust account and the funds were not being properly managed. The available evidence was insufficient to establish knowledge on the part of the shareholder who is the subject of this reprimand.

    By failing to ensure that the shareholder in the firm managing the trust account was doing so in compliance with the Rules of Professional Conduct, the attorney violated SCR 20:5.1(a).

    The attorney had no prior discipline.

    Communications Concerning a Lawyer’s Services; Firm Names and Letterheads

    Violation of SCR 20:7.1(a) and 20:7.5(a)

    An attorney’s Wisconsin law license was administratively suspended in 2009 for nonpayment of State Bar of Wisconsin dues. The suspended attorney’s law license was suspended in 2010 because the attorney did not comply with continuing legal education requirements. The suspended attorney was not licensed to practice law in any other state.

    The suspended attorney became involved in a personal dispute with another party, and in connection with that dispute the suspended attorney wrote to the other party’s employer using letterhead that stated, “The Offices of Attorney…,” without clarifying the status of his law license. Below his name at the end of the letter, the suspended attorney inserted “Wisconsin Bar Association” and “American Bar Association.”

    After suspension of his law license, by using letterhead in correspondence in which he referred to himself as an attorney, and by adding “Wisconsin Bar Association” and “American Bar Association” to the signature block of his letter, when he was suspended from practice in Wisconsin and was not licensed to practice law in any jurisdiction, and without adding any clarifying language to his letterhead or signature block to indicate that he was not licensed to practice as an attorney in any jurisdiction, the suspended attorney violated SCR 20:7.1(a) and SCR 20:7.5(a).

    The attorney had no prior discipline.

    Violation of Oath and Committing a Criminal Act

    Violation of SCR 40.15 and 20:8.4(b)

    An attorney was the trustee of a trust of which the decedent’s adult children were the beneficiaries. While the estate was open, a woman who was one of the beneficiaries complained to the court that the attorney had engaged in unwanted physical contact and inappropriate touching when the woman had met with the attorney in his office.

    The attorney was charged with three misdemeanor counts of disorderly conduct relating to the conduct described by the woman. The attorney subsequently pleaded no contest and was convicted of one count of disorderly conduct, with two additional counts of disorderly conduct read in. The misdemeanor case was later dismissed after the attorney complied with the terms of a deferred prosecution agreement.

    By engaging in inappropriate and potentially sexual advances toward an adult who was the beneficiary of a trust for which he was the trustee and to whom he owed fiduciary duties as trustee, the attorney violated SCR 40.15, the Attorney’s Oath, which states, in part, “I will abstain from all offensive personality.” SCR 40.15 is enforced under SCR 20:8.4(g). By engaging in acts leading to the attorney’s conviction of one count of misdemeanor disorderly conduct, with two additional counts of disorderly conduct read in, subject to a deferred prosecution agreement, the attorney violated SCR 20:8.4(b).

    The attorney had no prior discipline.

    Criminal Act; Practice While Suspended; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

    Violations of SCR 20:8.4(b), 31.10(1), and 22.26(2) via 20:8.4(f)

    On Jan. 17, 2014, an attorney pleaded guilty to misdemeanor operating a vehicle while intoxicated (OWI) (second) in violation of Wis. Stat. section 346.63(1)(a), following an incident in which his car went off the road, into a ditch, and hit a tree. Deputy sheriffs located the attorney in a wooded area by following his footsteps in the snow. The attorney was arrested and transported to the local hospital, where his blood was drawn over his objection. His blood alcohol level was 0.15 g/100ml.

    By engaging in conduct leading to his conviction for OWI (second) in violation of Wis. Stat. section 346.63(1)(a), the attorney committed a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b).

    Effective June 4, 2013, the attorney’s Wisconsin law license was suspended pursuant to SCR 31.10(1) as a result of his noncompliance with mandatory continuing legal education requirements. On June 6, 2013, the attorney participated in a deposition on behalf of a client and on June 10, 2013, he performed “some legal research.”

    On June 11, 2013, the attorney filed a petition for reinstatement in which he asserted, “I have not practice[d] law in Wisconsin during my period of ineligibility.”

    By practicing law in Wisconsin while his license was suspended, the attorney violated SCR 31.10(1) and SCR 22.26(2), enforced via SCR 20:8.4(f).

    By misrepresenting in a petition that “I have not practice[d] law in Wisconsin during my period of ineligibility,” the attorney violated SCR 20:8.4(c).

    The attorney had no prior discipline.

    Charging an Unreasonable Fee

    Violation of SCR 20:1.5(a)

    An attorney drafted the will of a longtime client. Following the client’s death, the named personal representative disclaimed her interests under the will and declined to serve as the personal representative. The attorney was named as the alternate personal representative and served in that capacity. As the personal representative, he hired himself to represent the estate.

    The attorney performed a substantial amount of work on behalf of the estate, much of it relating to the repairs and sale of the decedent’s home. The attorney billed the estate for 380.1 hours at his professional legal rate of $185 per hour, for a total of $70,313.90. Under Wisconsin law, the attorney was prohibited from charging his legal rate for nonlegal work performed on behalf of the estate.

    Based on an analysis of the attorney’s billings, the maximum number of hours he performed as actual legal work was 137.5 hours, which at his professional legal rate of $185 per hour, totaled a professional fee of $25,437.50. His commission as personal representative totaled $9,787.46. Therefore, the attorney was entitled to receive a maximum of $35,224.96 from the estate. While the attorney had already reimbursed the estate $20,000, he owed restitution to the estate in the amount of $15,088.93.

    By charging his professional rate as an attorney for nonprofessional services he performed as personal representative of the estate, the attorney violated SCR 20:1.5(a).

    The attorney had no prior disciplinary history.

    Unauthorized Signing of Client’s Name

    Violation of SCR 20:8.4(c)

    An attorney representing a man in a worker’s compensation claim reached a settlement with the insurer. The client, although not entirely satisfied with the language of the limited compromise agreement prepared by the insurer, signed the document. After reviewing the limited compromise agreement, the Department of Workforce Development (DWD) informed the parties that for the agreement to be approved, language in the agreement requiring the worker to resolve any medical liens or claims against the settlement that might be asserted by Medicare must be removed. The change in the agreement inured to the client’s benefit.

    After preparing the revised limited compromise agreement, the attorney for the worker signed the client’s name to the agreement rather than obtaining an original signature from the client, who, he anticipated, would be reluctant to sign. The attorney provided the client with a copy of the revised agreement but omitted the signature page. The DWD approved the revised agreement and the client accepted the settlement funds received from the insurer. The client learned of the attorney’s conduct when he later sought to reopen the compromise agreement.

    By signing the client’s name without the client’s permission and subsequently concealing that action from the client, the attorney violated SCR 20:8.4(c), which provides that it is misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

    The attorney had no prior discipline.

    Lack of Competence; Advancing a Baseless Claim

    Violations of SCR 1.1 and 20:3.1(a).

    An attorney brought an action on behalf of a client for conversion or bailment against two defendants regarding a dispute over the ownership and possession of a pet dog. The attorney further asserted an action to quiet title in the dog and a claimed violation of Wis. Stat. chapter 173, relating to animals and humane officers.

    The defendants moved the circuit court to strike the attorney’s quiet title and “Section 173” claims. The court struck the attorney’s claims for relief based on the determination that the claims had no basis in the law, and the court ordered the attorney and his client to pay attorney fees to the defendants totaling $2,928.50.

    By bringing a cause of action regarding ownership and possession of a dog, which cause of action included frivolous claims for an equitable quiet title remedy and for violating Wis. Stat. chapter 173, neither of which claims had a reasonable basis in law, the attorney violated SCR 20:1.1 and SCR 20:3.1(a).

    The attorney had no prior discipline. As a condition of the reprimand, the attorney paid the court-ordered attorney fees.

    Conflict of Interest: Prohibited Loan Transaction with Client

    Violation of SCR 20:1.8(a)

    An attorney represented a client in a dispute over the distribution of an estate. A settlement was reached whereby the client would obtain ownership of the decedent’s home in exchange for a cash payment to the other party in the dispute.

    The client did not have the necessary funds to finance the buy-out. The attorney arranged for a purported “anonymous” lender to supply the necessary funds. The loan was made but the transaction was not reduced to writing. After attempts to sell the property fell through, the attorney informed the client that the anonymous lender wanted to be repaid.

    The attorney then agreed to take over the loan, and the client executed a promissory note that was to be repaid at no interest. Although the client was advised to seek independent legal counsel regarding the promissory note, this advice was not put in writing as required by SCR 20:1.8(a). After the client failed to make any payments on the promissory note, the attorney filed a civil complaint against the client seeking payment.

    By entering into a loan transaction with a client, without advising the client in writing to seek independent counsel and without obtaining a written, signed informed consent to the transaction, the attorney violated SCR 20:1.8(a)

    The attorney had no prior discipline.

    Criminal Act Reflecting Adversely on Fitness to Practice

    Violation of SCR 20:8.4(b)

    An attorney was charged with second-offense OWI and operating with a prohibited alcohol concentration (PAC) of 0.08 or more.

    The attorney was the subject of a traffic stop. In making contact with the attorney, the police officer noted a strong odor of alcohol, coupled with a mint smell, emanating from the attorney’s vehicle. The attorney failed to satisfactorily complete field-sobriety tests and was then arrested. The result of an evidentiary breath test, taken approximately one hour after the violation time, was 0.20 g/210L.

    Pursuant to a no-contest plea, the attorney was convicted of OWI (second). The operating with PAC 0.08 or more (second) charge was dismissed on the prosecutor’s motion. The attorney was sentenced to 25 days in jail with Huber privileges, driver’s license revocation for 16 months, and ignition-interlock installation for 12 months. The attorney also was ordered to undergo an alcohol assessment and pay a fine.

    By engaging in conduct leading to a misdemeanor conviction of OWI (second), the attorney violated SCR 20:8.4(b).

    The attorney received a private reprimand in 2006 and a public reprimand in 2002, each for misconduct unlike that in the present matter.




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