Vol. 80, No. 11, November 2007
Disciplinary proceedings
Disciplinary proceeding against Amy Acker
On Sept. 14, 2007, the Wisconsin Supreme Court suspended the law license of Amy Acker, Waukesha, for 18 months. In addition, the court ordered Acker to pay the cost of the disciplinary proceeding. Disciplinary Proceedings against Acker, 2007 WI 117.
The suspension is based on misconduct related to Acker's handling of seven estates. In six of the matters, Acker created and filed false closing certificates, in violation of SCR 20:8.4(b) and (c). In addition, Acker made a series of misrepresentations to the court concerning the status of the six estates, in violation of SCR 20:3.3(a)(1). In one of the matters, she filed a false receipt with the court, also in violation of SCR 20:3.3(a)(1). In another matter, she failed to promptly respond to the Wisconsin Estate Recovery Program, in violation of SCR 20:1.3, and failed to promptly respond to the personal representative's inquiries, in violation of SCR 20:1.4(a).
Acker had no prior discipline.
Disciplinary proceeding against James D. Thibodeau
On Sept. 18, 2007, the Wisconsin Supreme Court suspended the law license of James D. Thibodeau, La Crosse, for 60 days, effective Oct. 23, 2007. Disciplinary Proceedings against Thibodeau, 2007 WI 118.
The Office of Lawyer Regulation (OLR) and Thibodeau entered a stipulation, whereby he agreed that he committed nine counts of misconduct, the most serious of which involved his holding more than $21,000 in personal funds in his trust account to avoid seizure of those funds by tax authorities, in violation of SCR 20:8.4(c). He also violated former SCR 20:1.15(b) by depositing personal funds into his trust account; former SCR 20:1.15(a) by failing to hold client and third party funds in trust; former SCR 20:1.15(e)(4)b. by making 13 disbursements from his trust account via telephone transfer; SCR 20:1.15(f)(1)a., (f)(1)b., and (f)(1)d. by failing to maintain a transaction register, client ledgers, and proper deposit records; SCR 20:1.15(f)(1)g. by failing to perform monthly reconciliations of his trust account; and SCR 20:1.15(i)(4) by filing false certificates with the State Bar of Wisconsin relating to compliance with trust account recordkeeping requirements.
Thibodeau had no prior discipline.
Disciplinary proceeding against Keith R. Hughes
On Sept. 11, 2007, the Wisconsin Supreme Court entered an order summarily suspending the Wisconsin law license of Keith R. Hughes, Eagle River. Case No. 2007XX913-D.
The OLR had sought the summary suspension pursuant to SCR 22.20, following Hughes' entering a guilty plea and being found guilty of the federal felony offense of conspiracy to commit offense or to defraud the United States, in violation of 18 U.S.C. § 371.
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Reinstatements
Reinstatement of Carlos Gamiño
On Sept. 5, 2007, the Wisconsin Supreme Court reinstated the law license of Carlos Gamiño and ordered him to pay the $4,429.13 cost of the reinstatement proceeding. Disciplinary Proceedings against Gamiño, 2007 WI 115.
The court had suspended Gamiño's law license for six months, commencing Jan. 24, 2006, for professional misconduct in two client matters. Disciplinary Proceedings against Gamiño, 2005 WI 168, 286 Wis. 2d 558, 707 N.W. 2d 132. In one matter, Gamiño engaged in an improper sexual relationship with a client in violation of SCR 20:1.8(k)(2). In the second matter, Gamiño violated SCR 20:1.7(b) by engaging in sexual relations with a client's mother, and he violated SCR 20:3.3(a)(1) and 22.03(6) by making misrepresentations about his conduct to a court and to the OLR.
After a hearing on Gamiño's petition for reinstatement, a referee concluded that Gamiño had met the standard for reinstatement set forth in SCR 22.31(1) and recommended that Gamiño's license be reinstated. After reviewing the record, the court adopted the referee's recommendation and concluded that Gamiño had satisfied all of the criteria necessary for reinstatement.
Reinstatement of Gricel Echavarria
On Sept. 5, 2007, the Wisconsin Supreme Court reinstated the law license of Gricel Echavarria, Madison. Disciplinary Proceedings against Echavarria, 2007 WI 116.
The court summarily suspended Echavarria's license on Nov. 17, 2003, in the wake of her conviction in federal court for conspiracy to produce and transfer false identification documents, counterfeit resident alien cards, and counterfeit Social Security cards. In the criminal proceeding, Echavarria was sentenced to 27 months of imprisonment. The Wisconsin Supreme Court subsequently suspended Echavarria's license for two years, retroactive to the date she was summarily suspended. Disciplinary Proceedings against Echavarria, 2004 WI 51.
Following a hearing in the reinstatement proceeding, a court-appointed referee filed a report recommending reinstatement. Neither the OLR nor the Board of Bar Examiners opposed the referee's recommendation. The court reinstated Echavarria's license, subject to her compliance with mandatory continuing legal education reporting requirements, and ordered Echavarria to pay the cost of the reinstatement proceeding within six months.
Reinstatement of Perry P. Lieuallen
On Sept. 25, 2007, the Wisconsin Supreme Court reinstated the law license of Perry P. Lieuallen, Port Washington, and ordered him to pay the $5,890.69 cost of the reinstatement proceeding. Disciplinary Proceedings against Lieuallen, 2007 WI 119.
The court had revoked Lieuallen's license on June 1, 2001, based on his misconduct, which included mismanagement and conversion of client funds. In addition, Lieuallen failed to maintain required trust account records, and he filed false certifications with the State Bar of Wisconsin by indicating on his dues statements that he was maintaining required trust account records. On June 1, 2001, the court revoked his license. Disciplinary Proceedings against Lieuallen, 2001 WI 50, 243 Wis. 2d 478, 626 N.W.2d 802.
After a hearing on Lieuallen's petition for reinstatement, a referee concluded, and the court later agreed, that Lieuallen had met the standards for reinstatement set forth in SCR 22.31(1). The referee said that many of Lieuallen's trust account discrepancies could be characterized as sloppy recordkeeping and a failure to memorialize agreements with clients. The referee also noted that Lieuallen earnestly desired reinstatement and was extremely contrite regarding his past misconduct. Based on the referee's recommendation, the court ordered the reinstatement subject to the condition that Lieuallen continue to comply with all agreements for reimbursement of his former clients and pay the cost of the proceeding within six months.
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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 Provide Competent Representation and to Explain Matter to Client; Improper Termination
Violations of SCR 20:1.1, 20:1.4(b), and 20:1.16(d)
A woman met with an attorney on March 14, 2003, and on that date signed a one-third contingent fee agreement with the attorney's law firm, securing the attorney's representation on claims stemming from a Nov. 8, 2002, automobile accident in Tennessee.
The attorney is not licensed to practice law in Tennessee, which has a one-year statute of limitation on claims such as those the client expected the attorney to assert. The attorney never did any research concerning Tennessee statutes of limitation, and she operated under the belief that the time limit was the same as Wisconsin's three-year statute.
Although the client's claims became time-barred on Nov. 8, 2003, on May 12, 2004 the adverse party's insurer made a settlement offer of $875.42, which the client rejected. At the time of the insurer's offer, the attorney did not know that the applicable statute of limitation had rendered the claim time-barred, and so the attorney provided the client no information on that subject. On May 14, 2004, the attorney wrote to the client, terminating the representation.
With knowledge that the client's accident occurred in Tennessee and that a Tennessee statute of limitation would apply to any claims the client asserted, and without any independent knowledge as to the applicable statute of limitation, the attorney nonetheless failed to perform any research so as to ascertain the applicable statute of limitation, and therefore violated SCR 20:1.1, which requires an attorney to provide competent representation to a client.
Because the attorney never ascertained the applicable Tennessee statute of limitation, she was not able to explain to the client, in a manner that would allow an informed decision, the date by which claims would have to be asserted, whether or not to accept a prelitigation settlement offer, and the need to hire Tennessee-licensed counsel should litigation become necessary. The attorney therefore violated SCR 20:1.4(b), which requires a lawyer to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
By terminating her representation after the expiration of the claim period under the applicable statute of limitation, and by doing so without any reference to the potential application of any statute of limitation, and further, by failing to inform the client of the effect of the expiration of the claim period on the client's ability to obtain compensation in the matter, the attorney violated SCR 20:1.16(d), which requires a lawyer, on termination of representation, to take steps to the extent reasonably practicable to protect a client's interests.
Failure to Provide Diligent Representation, to Keep Client Reasonably Informed, and to Explain Matter to Client; Unreasonable Fee; Failure to Communicate Basis of Fee, to Reduce Contingent Fee to Writing, and to Return Unearned Portion of Fee
Violations of SCR 20:1.3, 20:1.4(a), (b), 20:1.5(a), (b), (c), and 20:1.16(d)
An attorney was hired to assist a paroled man in connection with his efforts to expunge information from his Department of Correction (DOC) files. The attorney did initial research and, without requesting records from the DOC, decided the information would be too difficult to expunge. The attorney did not explain his decision to the client, and he did no further work on the case for two years. The client made infrequent inquiries about the status of his case and the lack of progress. The attorney failed to respond.
By failing to advance the client's matter over the course of two years, the lawyer violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client. The lawyer's failure to provide updates to his client regarding the status of the 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. The lawyer's failure to discuss with his client his opinion concerning the merits of the case violated SCR 20:1.4(b), which requires that a lawyer explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
In a second matter, the attorney accepted a $15,000 retainer to litigate a complex defamation suit. There was no written fee agreement. The attorney drafted and mailed three letters to potential defendants setting forth demands and objections. More than a year later, the client learned that the attorney had not pursued a lawsuit. The client terminated the representation and asked for the unused portion of the retainer. The attorney informed him that the retainer was nonrefundable and was a part of a contingent fee under which the attorney would receive 40 percent of any recovery. The attorney concedes there was not a written contingent fee agreement. The client stated he had not agreed to a nonrefundable fee. The attorney's billable hours and expenses were between $4,800 and $6,200.
By accepting a $15,000 fee in anticipation of a complex defamation lawsuit and then failing to expend the time and labor required to prepare for a lawsuit, the lawyer violated SCR 20:1.5(a), which requires a fee to be reasonable. By failing to communicate to the client the basis or rate of his fee, the lawyer violated SCR 20:1.5(b). By failing to reduce a contingent fee agreement to writing, the lawyer violated SCR 20:1.5(c), which requires contingent fees to be in writing. By failing to refund a fee that was not supported by the work completed or the hours expended, the lawyer violated SCR 20:1.16(d), which requires the lawyer to refund any advance payment that has not been earned.
Imposition of a private reprimand was conditioned on the attorney submitting the fee dispute in the second matter to fee arbitration.
Lack of Diligence and Communication in a Family Matter
Violations of SCR 20:1.3 and 20:1.4(a)
An attorney represented a woman in her divorce, which was finalized in May 1991. Pursuant to the marital settlement agreement, when the ex-husband's retirement benefits became payable to him, the woman was to receive half of the retirement benefits earned by the ex-husband during the marriage. The ex-husband took early retirement in 2001.
It was necessary to draft and file a qualified domestic relations order (QDRO) to effectuate the payment of benefits to the client. The client asserted that she called the attorney "throughout the years" about his completing the QDRO. The attorney asserted that he "didn't become aware that [the QDRO] would be necessary until early 2001."
In July 2001, and again in April 2002, the attorney filed QDROs on the client's behalf. Both were rejected by the ex-husband's employer.
In the summer of 2005, the client informed the attorney that she was not receiving her share of the pension payments. The attorney advised the client that he would hire another attorney to draft the QDRO. Having heard nothing further, the client sent the attorney a certified letter in September 2005, requesting the name of the attorney who would be completing the QDRO and asking that the QDRO be completed within 60 days.
Again having heard nothing, the client called the attorney in November 2005. He did not return her call. The client called a few days later and spoke with the attorney's secretary, who told her the attorney would call her back. That same day, the client called her ex-husband's former employer. She was told that the last time they had received anything from the attorney was in April 2002.
In February 2006, after being contacted about this matter by the OLR, the attorney informed the client that he had hired a third party to complete the QDRO and that completion was expected within 10 days. Later that month, the attorney informed his client that the QDRO had been submitted for preapproval.
The QDRO was approved in early spring of 2006 but the original was lost. A duplicate original was signed and forwarded to the ex-husband's former employer in April 2006.
The attorney initially believed that the delayed filing of the QDRO would not cause the client to lose any money because, he asserted, he had been told by the ex-husband's former employer that money was being withheld all along. The client subsequently learned that the timing of the QDRO did in fact cause her economic harm.
By failing between early 2001 and April 2006 to draft a QDRO, gain approval of it, and file it with the court on the client's behalf, the attorney failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
By failing to respond to his client's letters and phone calls of September and November 2005 until February 2006, after being contacted by the OLR, the attorney failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).
The attorney was previously privately reprimanded in 1990 for similar misconduct.
As a condition of the reprimand, the attorney was required to fully reimburse his client for her monetary losses in the underlying matter within 30 days of executing the private reprimand agreement.
Misrepresenting Identity to Members of the Public to Insulate Legal Practice from Associated Repossession Work
Violation of SCR 20:8.4(c)
An attorney practicing in credit, collection, repossession, and foreclosure law also operated a separate repossession business in which he, personally, would handle repossessions of property relating to his legal cases. The attorney represented a bank in a replevin action to recover an automobile. After the replevin order was issued, the attorney recovered the automobile.
In connection with such repossession, the attorney left a business card for his repossession company with the relatives of the automobile's owner. The owner's son then telephoned the number on the card and the attorney answered. During their telephone conversation, the attorney misrepresented his identity to the caller. Later, the son telephoned again and got a voice mail message with the attorney's true name.
By misrepresenting himself to the caller and other members of the public by using a pseudonym when doing repossession work, the attorney violated SCR 20:8.4(c), which provides, "It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
Lack of Diligence and Communication; Violation of Attorney Oath - Offensive Personality
Violations of SCR 20:1.3, 20:1.4(b), and 20:8.4(g)
An attorney represented a client in a family matter. The client presented immediate concerns about child support and placement. The attorney could not attend a scheduled temporary hearing because of vacation plans and took no action to reschedule a hearing before being discharged about a month later. The attorney also failed to respond to the client's requests for information about the scheduling of the hearing. When the client and her sister confronted the attorney, he responded that he did not "give a shit" about the child support request.
The attorney consented to a private reprimand for violating SCR 20:1.3, Diligence, SCR 20:1.4(b), Communication, and SCR 20:8.4(g), Misconduct (Attorney Oath - Offensive Personality).
Failure to Respond to Client Request for an Accounting and for Refund of Unearned Fees
Violations of SCR 20:1.4(a) and 20:1.16(d)
In March 2005 a woman hired an attorney to represent her in her divorce. The parties entered into a written fee agreement in which they agreed the client would pay the attorney an advanced fee of $2,500, which would be billed against at a rate of $175 per hour. The client paid the fee.
The divorce judgment was entered in late October 2005. In December 2005 the client began sending the attorney communications regarding an accounting and a refund of any unearned fee. The attorney did not respond to the client. In April 2006 the client stopped by the attorney's office and the attorney then acknowledged the client was due a partial refund of the fee, which the attorney said she would send the client, along with an accounting. The client did not hear from the attorney again until she filed a grievance with the OLR. After the OLR contacted the attorney, she provided the client an accounting and a partial refund in December 2006.
By failing to respond to the client's requests for information regarding an accounting of the amount of her bill, the attorney violated SCR 20:1.4(a).
By failing to respond to the client's request for a partial refund of her advanced fee, the attorney violated SCR 20:1.16(d).
Failure to Provide Competent Representation; Failure to Consult and Abide by Clients' Wishes; Failure to Communicate; Conflict of Interest
Violations of SCR 20:1.1, 20:1.2(a), 20:1.4(a), and 20:1.7(b) (effective before July 1, 2007)
An attorney entered into a contingent fee agreement to represent a minor in a personal injury lawsuit but thereafter failed to raise the parents' derivative claims in the litigation in violation of SCR 20:1.1, which requires competent representation. The attorney also became the guardian ad litem for the minor and subsequently settled the case against the express wishes of the parents. In doing so, the attorney violated SCR 20:1.2(a), by failing to consult with his clients sufficiently regarding the scope of representation and by failing to abide by his clients' decisions regarding the scope of representation.
The court ordered the parties to attend mediation. Despite a request from the clients to meet and discuss the case before mediation, the lawyer failed to meet with the clients or explain the mediation process sufficiently and otherwise failed to keep the clients reasonably informed about the status of the matter, in violation of SCR 20:1.4(a). Moreover, in failing to consult sufficiently with his clients regarding the potential for a conflict of interest between the parents' interests and those of their minor son, and in failing to obtain the parents' written consent regarding the potential for a conflict of interest, the attorney violated SCR 20:1.7(b). The attorney had no prior discipline.
Engaging in Criminal Conduct and Failure to Timely Report the Conduct
Violations of SCR 20:8.4(b) and 21.15(5)
An attorney was charged with one count of misdemeanor hit and run, contrary to Wis. Stat. section 346.67(1). According to the criminal complaint, the attorney encountered a fire truck, the driver of which was attempting to back up. Three firemen were guiding the driver. The attorney was asked to back up his vehicle but instead accelerated forward, striking one of the firemen guiding the fire truck. The attorney then put his vehicle in reverse and fled the scene. The attorney asserted that he was operating a new vehicle and that when he was asked to back up, he inadvertently put his vehicle in drive and then backed out of the street as ordered. The attorney does not believe he hit the fireman.
Following a bench trial, the attorney was convicted of the charge. The attorney was ordered to pay $500 in fines and costs and ordered to perform 50 hours of community service or serve 10 days in jail.
By engaging in conduct leading to his conviction on one count of misdemeanor hit and run, the attorney violated SCR 20:8.4(b). The attorney failed to report his conviction to the OLR within five days, in violation of SCR 21.15(5).
The attorney had no prior discipline.
Failure to Return Unearned Portion of Fee and to Hold Unearned Fees in Trust; Failure to Adequately Explain to Client the Rate and Basis of Fees
Violations of SCR 20:1.5(a), 20:1.16(d), 20:1.5(b), and 20:1.15(b)(4) (all effective before July 1, 2007)
A woman hired an attorney to represent her in a divorce and advanced to the attorney $2,000 for the representation. The attorney deposited the money in his firm's business account. On the day the woman hired the attorney, she first met with one of the attorney's associates and later met with the attorney's secretary. The next morning the attorney filed the pleadings to initiate the client's divorce and paid the $185 filing fee. Later that day, the client called the attorney's office, advised the attorney's secretary that she wanted to "drop" the divorce proceedings, and requested a refund of the unearned portion of the $2,000 she had paid to the firm on the previous day. The client called the attorney's office several times over the next four days but did not receive a return telephone call from the attorney or a refund of any portion of the $2,000. Eventually, the attorney wrote the client a letter in which he stated that the $2,000 was not refundable and asked that she forward payment for the $185 filing fee advanced by the firm.
The written retainer agreement signed by the client referred to the $2,000 payment as a retainer, stated that it was earned on receipt and constituted the minimum charge for handling the matter, and stated that the client would pay specified hourly rates for the services of the attorney and his staff after the exhaustion of the $2,000. The retainer agreement did not, however, explain when these hourly charges would begin to accrue.
The attorney stated that it was his usual procedure to charge a $2,000 "retainer," which he treated as earned in its entirety when paid, but that he customarily did not start billing his clients for any work performed at his hourly rate of $200 per hour listed in his retainer agreement until after he had expended 10 hours of work time on a client's case. The attorney further stated that a client would receive an accounting and a monthly billing when the fees, based on the hourly rates, exceed the retainer. However, no one explained to the client what time would be included in determining when the initial "retainer" was exceeded. Further, the attorney and his staff did not consistently maintain time records for the time expended on the client's case, so that the attorney could accurately calculate when his firm had exceeded the $2,000 "minimum fee."
The OLR calculated that, based on the reasonable value of the time spent on the client's case by the attorney and his staff, the attorney's firm earned no more than $485 of the $2,000 and advanced only $185 on the client's behalf. Therefore, the client was entitled to a refund of at least $1,330 when she terminated the representation.
By retaining that portion of the $2,000 paid by the client in excess of the total of the fees actually earned and costs actually advanced by the attorney's firm, the attorney violated former SCR 20:1.5(a) (in effect before July 1, 2007), which states, "A lawyer's fee shall be reasonable…," and former SCR 20:1.16(d) (in effect before July 1, 2007), which states, "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as … refunding any advance payment of fee that has not been earned."
By failing to adequately explain or to cause his staff to adequately explain to the client the rate and basis of the fees to be charged for the representation, the attorney violated former SCR 20:1.5(b) (in effect before July 1, 2007), which states, "When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation."
Because the $2,000 paid by the client was tied to the actual hours of work to be performed by the attorney and his firm, it was not a true retainer, but an advanced fee. Therefore, by depositing the $2,000 paid to his firm by the client in his firm's business account, the attorney violated former SCR 20:1.15(b)(4) (in effect before July 1, 2007), which states, "Unearned fees and advanced payments of fees shall be held in trust until earned by the lawyer, and withdrawn pursuant to [former] SCR 20:1.15(g) [in effect before July 1, 2007]."
The attorney had no prior discipline.
As a prior condition of the imposition of this private reprimand, the attorney reimbursed $1,330 to the client.
Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation
Violation of SCR 20:8.4(c)
In December 2004, an attorney began representing a woman in her divorce proceeding and in August 2005, a divorce judgment was granted. In January 2006, the woman contacted the attorney regarding an incident involving the parties' minor children. The woman requested that the attorney immediately file a motion for contempt and a motion to modify or reduce the former spouse's placement with the children.
On Feb. 17, 2006, the attorney filed a motion for contempt with an attached affidavit in support of the motion from the children's therapist. The attorney notarized the therapist's signature on the affidavit on Jan. 6, 2006. In April 2006, the woman's former spouse alleged that the attorney had improperly notarized the therapist's signature on the affidavit when the therapist had not been present.
The attorney asserted that after she was instructed by her client to file the motion for contempt she spoke to the children's therapist and during that conversation, the therapist indicated that the former spouse's behavior was having a negative emotional impact on the children and she was willing to testify to that in court. Following that conversation, the attorney prepared an affidavit on behalf of the therapist outlining her opinions and then called the therapist to let her know that she was faxing the affidavit to her for her to review. The attorney told the therapist to review the language contained in the affidavit and to make any edits or corrections as she saw fit so that the document would be truthful. The attorney requested that after her review, the therapist sign the affidavit and fax it back to the attorney so she could authenticate the therapist's signature immediately after receiving the fax.
After receiving the faxed affidavit from the attorney, the therapist made edits in her own handwriting, signed the affidavit, and faxed it back to the attorney. The attorney asserted that after the document arrived via the fax, she immediately notarized the therapist's signature on the affidavit outside of the therapist's presence. The attorney asserted that she had never had another occasion to notarize a faxed signature and she would never do so again.
In notarizing the therapist's signature on the Jan. 6, 2006 affidavit outside the therapist's presence, the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c). The attorney had no prior disciplinary history.
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Wisconsin Lawyer
