The Office of Lawyer Regulation (OLR), an agency of the Wisconsin
Supreme Court, provides these summaries for educational
purposes. The OLR assists the court in supervising the practice
of law and protecting the public from misconduct by lawyers.
Find the full text of these summaries at www.wicourts.gov/olr.
Disciplinary Proceedings Against Thad Jelinske
On Sept. 12, 2018, the Wisconsin Supreme Court suspended the law license of Thad W. Jelinske, Milwaukee, for 18 months. The court also assessed the full $13,032.92 cost of the disciplinary proceeding against Jelinske. Disciplinary Proceedings Against Jelinske, 2018 WI 94.
Jelinske was a partner in a Milwaukee law firm. Following the death of a long-time firm client, Jelinske commenced informal probate proceedings. However, the estate was insolvent, with the deceased owing more than $3 million to one bank. Nonetheless, Jelinske wrote checks from the estate account for personal expenditures.
In addition, Jelinske arranged for his firm to lend money to the estate to forestall a foreclosure and pay off a mortgage. The loan contained a “success fee” of one-third of the net proceeds from the sale of the home. Jelinske did not seek court approval for the loan. Jelinske thereafter double billed the estate for legal services related to the sale of a business owned by the deceased; converted to his own use two life insurance polices held by the deceased; billed the estate for both personal representative fees and attorney fees, contrary to Wis. Stat. section 857.05(3); and billed approximately $167,463 in legal fees, leaving only $174,885.58 remaining for distribution to creditors. Jelinske also filed inventories that contained misrepresentations.
Eventually, the main creditor bank instituted litigation against Jelinske and his firm. Jelinske lied during his deposition and testified falsely at the trial. Jelinske also made various misrepresentations to the Office of Lawyer Regulation (OLR) during the investigation of his conduct.
Jelinske stipulated to his misconduct. By paying personal expenses out of fiduciary funds and failing to keep all the estate funds in trust, Jelinske violated former SCR 20:1.15(j)(1). By entering, on behalf of the estate, into a loan agreement with his law firm that was a prohibited transaction under Wis. Stat. section 860.13, Jelinske violated SCR 20:8.4(f). By double billing the estate for certain legal work, Jelinske violated SCR 20:1.5(a).
By misappropriating funds held in fiduciary accounts and misappropriating insurance proceeds belonging to the estate, Jelinske violated former SCR 20:1.15(j)(1). By failing to maintain complete and accurate records of disbursements involving life insurance proceeds and other funds belonging to fiduciary accounts, Jelinske violated former SCR 20:1.15(j)(5). By disbursing cash out of funds held in a fiduciary account, Jelinske violated former SCR 20:1.15(j)(3)(a). By converting estate assets to his own use and denying having done so in his deposition, Jelinske violated SCR 20:8.4(c). By paying himself both a personal representative’s fee and attorney fees, Jelinske violated SCR 20:8.4(f).
By knowingly making false statements of fact in sworn estate accountings filed with the court, Jelinske violated SCR 20:3.3(a)(1). By testifying falsely in court about his use of estate funds for his own personal expenses, Jelinske violated SCR 20:3.3(a)(3). By making misrepresentations to the OLR in connection with the grievance investigation, Jelinske violated SCR 22.03(6), as enforced via SCR 20:8.4(h).
Jelinske had no prior discipline.
Public Reprimand of Sarah Clemment
In a decision dated June 15, 2018, the supreme court publicly reprimanded Sarah Clemment, Madison. The court also ordered Clemment to pay restitution totaling $5,000 to a former client as well as the $802.19 cost of the proceeding. Clemment did not present a defense and was declared to be in default. Disciplinary Proceedings Against Clemment, 2018 WI 69.
Clemment’s misconduct arose out her representation of a client in a criminal matter. The client was charged with first-degree murder. The client’s sister paid Clemment a flat fee of $5,000. Clemment had never handled a homicide case and had never tried a case to a jury.
As a trial date approached, the circuit court noted that Clemment had not hired an investigator, retained any DNA, GPS, or pathology experts, filed a witness list that identified any witnesses other than those identified by the state, or received additional discovery from the state. Clemment filed a speedy trial request even though discovery was ongoing and her client was already serving time for other crimes. The court strongly urged Clemment to associate more experienced trial counsel to assist her in the case. Clemment did not do so.
As the case progressed, Clemment had not filed a suitable witness list, and she filed motions that lacked evidentiary or legal support. During one motion hearing, the court learned that Clemment had not reviewed the physical evidence in the case and had not personally visited the client in four months. At one point, the court queried Clemment on her knowledge of basic criminal law standards and procedures. Clemment was unable to respond satisfactorily to the court’s questions. The court determined that Clemment was not competent to represent the client and removed her from the case.
The client’s sister later requested a full refund of the $5,000 fee. Clemment agreed to provide a refund but failed to do so. Clemment also failed to provide the client posttermination notices as required by the Supreme Court Rules.
Clemment’s failure to provide competent representation to the client violated SCR 20:1.1; her failure to consult sufficiently with the client regarding the means by which the objectives of the representation were to be accomplished violated SCR 20:1.2(a) and SCR 20:1.4(a)(2); her failure to act diligently on the client’s behalf violated SCR 20:1.3; her failure to withdraw from the representation violated SCR 20:1.16(a)(1); and her failure to provide the client posttermination notices and an agreed-upon refund following termination of the representation violated SCR 20:1.5(g)(2) and SCR 20:1.16(d).
Clemment was publicly reprimanded in 2011 for misconduct in an immigration matter.
Public Reprimand of Raymond Clark
The OLR and Raymond Clark, Pewaukee, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee thereafter approved the agreement and issued the public reprimand on Aug. 30, 2018, in accordance with SCR 22.09(3).
Clark is a long-time member of a Bible study and Christian fellowship group based in Milwaukee County. Clark formerly served as treasurer for the group. In that capacity, Clark had signature authority on an account for the group and possessed a debit card attached to the account. From about January 2009 to January 2016, Clark used the debit card to make purchases for his personal benefit. He did this without the group’s knowledge or permission. Clark’s misuse of the group’s funds was discovered by the group’s current treasurer. Clark was removed as treasurer, his signature authority on the account was rescinded, and he no longer enjoys possession of a debit card belonging to the group. The group agreed to restitution of $6,000, which Clark has paid. (The agreed-on amount might not reflect the total amount of misused funds.)
By using the group’s funds for his personal benefit, without the group’s knowledge or permission, Clark violated SCR 20:8.4(c), which states, “It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Clark received a four-month disciplinary suspension in 2016.
Disciplinary Proceedings Against Michael P. Erhard
On Sept. 12, 2018, the supreme court suspended the law license of Michael P. Erhard, Madison, for three months, effective Oct. 12, 2018. Disciplinary Proceedings Against Erhard, 2018 WI 95. The court further ordered Erhard to pay the $3,190.26 cost of the proceeding and to obtain six credits of continuing legal education (CLE) on the subject of trust account management within the next 12 months.
In May 2014, Erhard made seven disbursements from his trust account for a client. The disbursements exceeded the funds available for that client by $100,000, resulting in funds belonging to other clients being converted to cover such disbursements. Shortly thereafter, Erhard repaid the $100,000 using his own funds. Between September and December 2014, Erhard made four disbursements for the same client; these disbursements exceeded the funds available for that client by $82,562, again resulting in the conversion of other clients’ funds to cover the disbursements. Approximately six months later, Erhard deposited $82,562 into his trust account to make up for the shortfall.
Erhard moved $400,000 from his trust account into his firm’s operating account, thereby commingling trust account funds with his personal funds. Also, Erhard moved $17,000 from his trust account to his operating account and then used those funds to pay business expenses and a $5,000 disbursement to himself. Finally, Erhard made numerous disbursements from his trust account via electronic transfers, which are impermissible in a standard trust account.
The supreme court found that Erhard had committed 10 counts of misconduct, seven of which were trust account violations of SCR 20:1.15(b)(1) and former SCR 20:1.15(f)(1)b. (effective through June 30, 2016). The remaining three counts were for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of SCR 20:8.4(c).
In imposing discipline, the supreme court underscored its agreement with the referee’s assessment that Erhard’s misconduct was mitigated by his lack of intent or malice, his cooperation with the OLR and admission of misconduct, and the conclusion that his failure to manage his trust account properly was an aberration rather than an indication of his character.
Erhard received a private reprimand in 2002.
Private Reprimand Summaries
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 Abide by Client’s Decisions Concerning Objectives of Representation; Failure to Consult with Client About Means by Which Client’s Objectives were to be Accomplished
Violations of SCR 20:1.2(a) and SCR 20:1.4(a)(2)
A lawyer represented a client in two criminal matters. The client wanted the case tried quickly and wanted to testify at the trial. The lawyer set the trial date several months in the future in an attempt to delay the trial. Without first consulting with the client as to whether the client wanted to engage in plea bargaining, the lawyer spoke to the prosecutor about plea deals.
By failing to abide by the client’s decisions concerning the objectives of the representation in a criminal case that could result in deprivation of liberty and by failing to abide by the client’s decision, after consultation with the lawyer, as to the plea to be entered, whether to waive a jury trial, and whether the client would testify, the lawyer violated SCR 20:1.2(a). Further, by failing to reasonably consult with the client about the means by which the client’s objectives were to be accomplished, the lawyer violated SCR 20:1.4(a)(2).
Attempt to Charge Improper Fee
Violations of SCR 20:1.5(a), SCR 20:8.4(f), SCR 20:1.16(d), and SCR 20:1.15(1)(e)
A lawyer represented a woman in a worker’s compensation claim. The written fee agreement proposed a 20 percent fee contingent on the amount of recovery, which was consistent with Wisconsin worker’s compensation law. The lawyer received $1,500 from the woman for the anticipated cost of a vocational evaluation. The lawyer held the funds in trust. The client died before she could undergo the evaluation. The lawyer did not obtain any recovery on her behalf. The woman’s husband requested that the $1,500 in unexpended funds be returned to him. The lawyer refused, asserting that he was entitled to keep the funds as a fee.
The husband filed a grievance and the lawyer continued to assert that he was entitled to a fee under a theory of quantum meruit or unjust enrichment. The OLR informed the lawyer that neither of these theories applied. Rather, the lawyer’s written contingent-fee agreement and worker’s compensation law controlled and did not allow for any fee as there had been no recovery. The lawyer then returned the full $1,500 to the husband, approximately eight months after the husband had first requested the refund.
The lawyer’s conduct in attempting to charge a fee contrary to his agreement and the law violated SCR 20:1.5(a), which prohibits charging unreasonable fees, and SCR 20:8.4(f), which prohibits lawyers from violating statutes regulating their conduct. The delay in returning the unexpended funds violated SCR 20:1.16(d), which requires prompt return of funds at conclusion of the representation, and SCR 20:1.15(e)(1), which requires the prompt delivery to third parties of any funds held in trust that they are entitled to receive.
Business Transaction with a Client; Making a Settlement Offer Without Authorization; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation; Lack of Diligence; Failure to Hold Disputed Funds in Trust; Failure to Provide an Accounting on Request
Violations of SCR 20:1.2(a), SCR 20:1.3, SCR 20:1.8(a), former SCR 20:1.15(d)(2) and (3) (in effect before July 1, 2016), and SCR 20:8.4(c)
A lawyer represented a client in a lawsuit against the estate of the man who injured the client in a car accident and the man’s insurer. The client’s insurer held a subrogated claim for $10,000.
By inquiring of opposing counsel as to whether opposing counsel’s client would settle its subrogated claim for $5,000, without informing opposing counsel that the lawyer had no settlement authority from the lawyer’s client, the lawyer violated SCR 20:1.2(a).
By inducing the subrogated insurer to settle its claim by accepting its counsel’s signed stipulation and order of dismissal without clarifying that the lawyer had no settlement authority or intention to pay the proposed $5,000, the lawyer violated SCR 20:8.4(c).
By failing to regularly review his email or to make adequate arrangements for his staff to do so, the lawyer violated SCR 20:1.3.
By failing to hold disputed funds in trust, the lawyer violated former SCR 20:1.15(d)(3) (in effect before July 1, 2016).
By failing to promptly provide opposing counsel with a full written accounting on request, the lawyer violated former SCR 20:1.15(d)(2) (in effect before July 1, 2016).
The lawyer also made three loans to the client during the representation without complying with the requirements of, and thereby violating, SCR 20:1.8(a).
In 1986, the lawyer received a private reprimand for violations of the former rule equivalents of SCR 20:1.3 and SCR 20:1.15(b) and (e)(1).
Failure to Return Client File; Failure to Cooperate with OLR Investigations
Violations of SCR 20:1.16(d) and SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h)
A lawyer engaged in professional misconduct in two matters.
In the first matter, the lawyer was appointed guardian ad litem for a minor in a personal injury lawsuit. The minor’s mother filed a grievance against the lawyer. The lawyer eventually responded to the grievance and satisfactorily addressed the allegations. The response was not timely and was filed only after the OLR sent the lawyer multiple notices, including by personal service, and the Wisconsin Supreme Court issued an order to show cause why the lawyer’s license should not be suspended for a willful failure to cooperate with the investigation. The lawyer violated SCR 22.03(2) and (6), enforced via SCR 20:8.4(h)
In the second matter, a former client of the lawyer and the client’s current counsel contacted the lawyer to request a case file from a criminal matter in which the lawyer had represented the client. Many months elapsed before the lawyer finally produced the file. The lawyer’s delay in producing the file violated SCR 20:1.16(d). The lawyer also failed to timely respond to the client’s grievance notwithstanding multiple notices from the OLR, including by personal service, and provided a response only after the supreme court temporarily suspended his law license because of his willful failure to cooperate with the grievance investigation. The lawyer’s failure to cooperate with the investigation violated SCR 22.03(2) and (6), enforced via SCR 20:8.4(h).
The lawyer had no prior discipline.
Practice While Inactive
Violations of SCR 10.03(3)(c) and (4)(a) and SCR 23.02(1) and (3)
In 2016, a lawyer with an inactive Wisconsin law license applied for employment as a senior attorney with a Wisconsin corporation. In August 2016, the lawyer learned that he needed to complete 60 hours of live CLE before his license could be reactivated. The lawyer also became aware of SCR 10.03(4)(b)(2)(f), which governs the practice of law as in-house counsel by lawyers who are not licensed to practice law in Wisconsin, and mistakenly believed he could register as an in-house counsel rather than reactivate his license.
On Aug. 29, 2016, the lawyer began his employment in Wisconsin as senior counsel without reactivating his license and without informing his employer he had not reactivated his license. Between Aug. 29, 2016, and January 2017, the lawyer took no steps to reactivate his license and did not file an application to register as an in-house counsel.
In January 2017, the lawyer filed his in-house counsel application. In February 2017, the Board of Bar Examiners notified him that he was ineligible to register as an in-house counsel because he had been admitted in Wisconsin.
The lawyer did not take any steps to reactivate his license until May 2017, after he received notice from the OLR of an investigation whether he had practiced law in Wisconsin without an active license. The lawyer’s license was not reactivated until July 25, 2017. The lawyer also did not keep his employer informed about the status of his license.
By practicing law in Wisconsin and using the title senior counsel when his license to practice law in Wisconsin was inactive, the lawyer violated SCR 10.03(3)(c) and (4)(a) and SCR 23.02(1) and (3), all enforceable via SCR 20:8.4(f).
The lawyer had no prior discipline.
Criminal Act Reflecting Adversely on Fitness to Practice
Violation of SCR 20:8.4(b)
In April 2018, a lawyer was found guilty after a jury trial of misdemeanor operating with a prohibited alcohol concentration (PAC) as a second offense. Law enforcement officers located the lawyer outside a disabled vehicle. The lawyer smelled of alcohol, showed other signs of intoxication, and admitted drinking. While performing field sobriety tests, the lawyer also admitted driving. The lawyer submitted to a breath-alcohol test, with a result of 0.14 g/210L.
The lawyer was sentenced to jail time, driver’s license revocation for 12 months, and ignition-interlock-device installation for 12 months. The lawyer also was ordered to provide a DNA sample, undergo an alcohol assessment, and pay a fine and costs.
By engaging in conduct leading to a misdemeanor conviction of second-offense operating with a PAC , the lawyer violated SCR 20:8.4(b). The lawyer had no prior discipline.
No Fee Agreement; Failure to Hold Advanced Fees and Costs in Trust; Advanced Fee Placement Alternative; Failure to Protect Clients’ Interests
Violations of SCR 20:1.5(b)(1) and (2), former SCR 20:1.15(b)(4) and (b)(4m)b., SCR 20:1.16(d), and SCR 20:3.4(c)
A lawyer engaged in misconduct while representing two clients.
In one matter, the lawyer accepted an advanced fee of $3,500 in a criminal case. By failing to enter into a written fee agreement, and by depositing the advanced fee payments into the lawyer’s business account, the lawyer violated SCR 20:1.5(b)(1) and (2) and former SCR 20:1.15(b)(4), respectively. The lawyer accepted a $2,000 flat fee in a related small claims case, and again violated SCR 20:1.5(b)(1) and (2) and former SCR 20:1.15(b)(4), respectively.
The lawyer failed to return an agreed-upon refund and failed to provide material requested by the client, in each instance violating SCR 20:1.16(d).
In the other matter, the lawyer accepted a $15,000 flat fee for representation in criminal cases. Upon termination of representation, the lawyer failed to provide the client with the accounting and notices required under former SCR 20:1.15(b)(4m)b. and also failed to appear at a hearing in violation of SCR 20:1.16(d) and SCR 20:3.4(c). The lawyer failed to timely return the client file and to timely refund an unearned cost advance, in each instance violating SCR 20:1.16(d).
The lawyer also accepted a $3,000 flat fee for representation against a governmental agency. By having no written fee agreement, and by depositing the flat fee into a business account, the lawyer violated SCR 20:1.5(b)(1) and (2) and former SCR 20:1.15(b)(4), respectively. The lawyer failed to deposit cost advances into a trust account, violating former SCR 20:1.15(b)(4).
As conditions of the private reprimand, the lawyer made refunds to both clients and attended a trust account seminar.
The lawyer had no prior discipline.