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    Wisconsin Lawyer
    December 13, 2018

    Lawyer Discipline

    The Office of Lawyer Regulation assists the court in supervising the practice of law and protecting the public from misconduct by lawyers.

    The Office of Lawyer Regulation (OLR), an agency of the Wisconsin Supreme Court, provides these summaries. 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. Find the full text of these summaries at

    Disciplinary Proceedings Against Adam J. Wiensch

    On Oct. 16, 2018, the Wisconsin Supreme Court suspended the law license of Adam J. Wiensch, Milwaukee, for two years, effective Nov. 27, 2018. Because Wiensch entered into a stipulation under SCR 22.12, the court did not impose costs. Disciplinary Proceedings Against Wiensch, 2018 WI 98.

    Wiensch was a partner at Foley & Lardner LLP and worked in the firm’s trusts and estates practice group. Among his clients were a married couple who owned a business corporation. As part of the estate planning, Wiensch prepared a trust and drafted documents to effectuate a stock sale that transferred most of the husband’s stock to the trust, thereby conveying significant assets to the trust free of estate and gift taxes. The beneficiaries of the trust were the clients’ children.

    After the husband died, Wiensch prepared the estate tax return. The IRS audited the return, as well as prior gift tax returns. In response to requests from the IRS, Wiensch submitted documents associated with the stock sale that he had altered and that contained forged signatures. When the IRS challenged the stock sale transaction in tax court, Wiensch did not tell the parties or the court that they were relying on false and forged documents. Ultimately, the IRS and the estate settled the tax litigation in reliance on the fraudulent documents supplied by Wiensch.

    While the husband’s estate tax litigation was proceeding, the IRS opened an additional investigation into the wife’s gift tax returns. During this examination the wife died, and the IRS sought information about certain stock transfers she made to her children before her death. The IRS asked Wiensch to provide a copy of the power of attorney that authorized the wife to make such transfers. Wiensch gave the IRS a forged power of attorney containing false signatures. The forged documents involving both estates were later discovered, and Wiensch admitted his misconduct.

    By drafting false documents, submitting them to the IRS, and making misrepresentations to the IRS in connection with two estate audits, Wiensch committed multiple violations of SCR 20:3.4(a), SCR 20:4.1(a), and SCR 20:8.4(c). In addition, by failing to inform Foley & Lardner that he had drafted and submitted false documents to the IRS, Wiensch breached his fiduciary duty owed to the firm and his duty of honesty in his professional dealings with the firm, in violation of SCR 20:8.4(f), as it relates to Disciplinary Proceedings Against Shea, 190 Wis. 2d 560, 190 N.W.2d 560 (1995).

    Wiensch had no prior discipline.

    Disciplinary Proceedings Against Michele A. Tjader

    On Oct. 16, 2018, the supreme court publicly reprimanded Michele A. Tjader, Madison. Disciplinary Proceedings against Tjader, 2018 WI 96. The court further ordered Tjader to pay the full $3,298.19 cost of the proceeding.

    Tjader engaged in misconduct with regard to three client matters. In each matter, the client made an advance payment of fees to Tjader, who deposited the fees directly into her business account. In each matter, Tjader failed at the end of the representation to provide the notices required under former SCR 20:1.15(b)(4m)b. (current SCR 20:1.5(g)(2)). Also in each matter, Tjader failed to provide the client with a refund of unearned fees, if any, or sufficient information to show that no refund was owed, in violation of SCR 20:1.16(d).

    In 2002, Tjader was publicly reprimanded. She was privately reprimanded in 2006 and again in 2014.

    Reinstatement Proceedings of Brian P. Mularski

    On Oct. 17, 2018, the supreme court denied Brian P. Mularski’s petition for reinstatement of his Wisconsin law license and ordered him to pay the full $6,000.60 cost of the reinstatement proceeding. Disciplinary Proceedings Against Mularski, 2018 WI 99.

    On Sept. 10, 2010, the court granted Mularski’s petition for consensual license revocation. Disciplinary Proceedings Against Mularski, 329 Wis. 2d 273. Mularski’s petition acknowledged he could not defend against allegations of professional misconduct in 11 client matters. The allegations included numerous trust account violations. The court ordered, as a condition of any future petition for reinstatement, that Mularski provide an accounting and demonstrate he made full restitution to those individuals aggrieved by his misconduct.

    In 2012, Mularski was charged with two felony counts of theft. It was alleged that he had embezzled hundreds of thousands of dollars from his former firm’s trust account. The allegations in the criminal matter overlapped with those in the Office of Lawyer Regulation’s (OLR’s) matter but were not identical. Mularski pleaded guilty to one of the charges. As part of his sentencing, he was ordered to pay $338,019.96 in restitution to his former firm’s trust account, and at the time of the sentencing Mularski had repaid the firm more than $238,000. On Feb. 16, 2017, Mularski filed a petition seeking reinstatement of his law license.

    The referee assigned to hear this matter found that Mularski met some, but not all, of the criteria for reinstatement. Most significantly, the referee noted that Mularski had failed to provide an accounting and demonstrate he had made full restitution to persons aggrieved by his misconduct and that Mularski gave no indication of even having a plan in place to commence making payments.

    The court adopted the referee’s findings of fact and conclusions of law and accepted the referee’s recommendation that Mularski’s petition be denied.

    Disciplinary Proceeding Against Ryan P. Thompson

    On Oct. 16, 2018, the supreme court suspended the law license of Ryan P. Thompson, Appleton, for 15 months. The court also ordered Thompson to pay restitution of $1,000 to a client and pay the $7,370.73 cost of the disciplinary proceeding. Disciplinary Proceedings Against Thompson, 2018 WI 97.

    Thompson’s suspension was based on 16 counts of misconduct arising in three client matters and on practicing while suspended, misconduct related to his employer, and misconduct during the OLR’s investigations. On May 6, 2016, the court suspended Thompson's law license based on his failure to cooperate with an OLR investigation. Thompson remained temporarily suspended until the court lifted the temporary suspension in its Oct. 16, 2018 order.

    Thompson violated SCR 22.03(2) and (6), enforced via SCR 20:8.4(h), by failing to cooperate in all four of the OLR’s investigations.

    In three of the matters, Thompson violated SCR 20:1.16(d) by failing to refund the unearned portion of the clients’ fees or to timely explain to the clients why they were not owed a refund.

    In two of the matters, Thompson violated former SCR 20:1.15(d)(2) and current SCR 20:1.15(e)(2) by failing to provide clients with written accountings on request.

    In one matter, Thompson violated SCR 20:1.3 by, after dismissal of the client’s Wisconsin family or medical leave act claim, failing to file an appeal and failing to file any other claims on the client’s behalf. Thompson violated SCR 20:1.4(a)(3) and (4) by failing to communicate with the client about the status of her claims and failing to respond to her reasonable requests for information.

    Thompson also violated SCR 20:1.16(d) by failing to provide the client or her counsel with her file and failing to notify the client that he was closing his private practice. Thompson violated SCR 22.26(1)(a) and (b), enforced via SCR 20:8.4(f), by failing to notify the client of the May 6, 2016, suspension of his license and that she should seek legal advice from another lawyer.

    At the time Thompson’s license was suspended, he was employed as an in-house counsel for a Wisconsin company. Thompson failed to inform the employer of his suspension and made misrepresentations to the employer. Thompson was eventually terminated, in part because he lied to the company about his license suspension.

    Thompson violated SCR 22.26(2) and SCR 23.02(1), enforced via SCR 20:8.4(f), by practicing law in Wisconsin when his license was suspended. Thompson violated SCR 23.02(3), enforced via SCR 20:8.4(f), by using the title “General Counsel” and holding himself out as a licensed attorney when his license was suspended. Thompson violated SCR 20:8.4(c) by engaging in a dishonest and deceitful course of conduct related to the status of his license and his ability to act as legal counsel for his employer. Thompson violated SCR 22.03(6), enforced via SCR 20:8.4(h), by making misrepresentations to the OLR during the course of its investigation of his actions after his suspension.

    Thompson had no prior discipline.

    Disciplinary Proceeding Against Thomas R. Napierala

    The supreme court publicly reprimanded Thomas R. Napierala, Milwaukee, on Oct. 25, 2018. The court also ordered Napierala to pay restitution of $15,021.66 to a client and pay the $1,677.53 cost of the disciplinary proceeding. Disciplinary Proceedings Against Napierala, 2018 WI 101.

    In February 2012, a client hired Napierala and another lawyer who worked in a different office to collaborate to challenge a mediation agreement and settlement in a case. If the mediation agreement could be set aside, the lawyers were to proceed with litigation seeking to prove the client was the biological son of a deceased man and was entitled to inherit the man’s estate. Napierala and the client entered into a fee agreement that disclosed Napierala’s billing rate but did not state that Napierala would bill the client for services performed by nonlawyer staff or the rate at which those services would be billed.

    In November 2012, the client, Napierala, and the other lawyer executed an “Appellate Fee Agreement” in which the client agreed that his counsel could withhold and “set aside” from an expected settlement $25,000 for appellate litigation and that each lawyer would receive a $6,000 flat fee for this representation. The appellate fee agreement provided that Napierala was to pay the other lawyer a referral fee of one-third of the hourly fees Napierala earned for representing the client.

    During the representation, the other lawyer would sometimes pay Napierala the total amount Napierala was owed at any given time, and Napierala would write a check to the other lawyer for the one-third referral fee. Sometimes the other lawyer would subtract the one-third referral fee before remitting payment to Napierala. Napierala failed to keep track of his billing and payments for his representation of the client and failed to diligently maintain records of payments he received from the client or from the other lawyer on the client’s behalf, thereby causing Napierala at various times to bill the client more than Napierala was owed.

    Between approximately November 2012 and December 2014, Napierala overbilled and was overpaid by the client various amounts. As of May 2014, Napierala had been overpaid at least $16,763.44. Napierala had also billed the client for nonlawyer services and various other legal or administrative advice for which the client did not authorize Napierala to incur fees.

    Napierala violated SCR 20:1.5(a) by failing to credit the client for all payments Napierala received from the client’s funds and for all the referral fees retained by the other lawyer, causing Napierala to bill the client for amounts that he was not owed.

    Napierala violated SCR 20:1.5(a) by billing the client at his hourly rate for services that were not reasonably billable to the client. He violated SCR 20:1.5(b)(1) by failing to communicate to the client at the beginning of the representation that he intended to bill the client for services provided by his nonlawyer staff and the rate at which those services would be billed.

    Napierala had no prior discipline.

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