Vol. 77, No. 5, May
2004
Lawyer Discipline
The Office
of Lawyer Regulation (formerly known as the Board of Attorneys
Professional Responsibility), an agency of the Wisconsin Supreme Court
and component of the lawyer regulation system, assists the court in
carrying out its constitutional responsibility to supervise the practice
of law and protect the public from misconduct by persons practicing law
in Wisconsin. The Office of Lawyer Regulation has offices located at
Suite 315, 110 E. Main St., Madison, WI 53703, and Suite 300, 342 N.
Water St., Milwaukee, WI 53202. Toll-free telephone: (877) 315-6941.
Hearing to Reinstate Robert L. Taylor
On Wednesday, June 30, 2004, at 9 a.m., a public hearing will be held
before Referee James J. Winiarski in the State Office Building, 819 N.
6th St., Milwaukee, on the petition of Robert L. Taylor to reinstate his
law license. Any interested person may appear at the hearing and be
heard in support of, or in opposition to, the petition for
reinstatement.
Taylor became licensed to practice law in 1979 and practiced in
Milwaukee County. His law license was revoked effective Dec. 14, 1987,
Disciplinary Proceedings Against Taylor, 148 Wis. 2d 708, 436
N.W.2d 612 (1989). Last year, his law license was revoked retroactively,
effective Dec. 14, 1992, Disciplinary Proceedings Against
Taylor, 2003 WI 35, 261 Wis. 2d 1, 660 N.W.2d 665.
Taylor's 1987 revocation was based on his conversion of client funds,
his misrepresentation to the court and opposing counsel concerning his
retention of funds in trust, his failure to deposit funds in trust, his
failure to pay funds as agreed upon, and his misrepresentations
concerning his application of tax refund proceeds. Taylor's later
revocation was based on Taylor's petition for consensual license
revocation due to, in part, his 1990 federal criminal conviction of
conspiracy to defraud by misapplying funds and embezzlement from a
federal credit union.
As to reinstatement, Taylor is required by SCR 22.29 to show, among
other things, that his conduct since the revocation has been exemplary
and above reproach; he has a proper understanding of and attitude toward
the standards that are imposed upon members of the bar and will act in
conformity with the standards; he can safely be recommended to the legal
profession, the courts, and the public as a person fit to be consulted
by others and to represent them and otherwise act in matters of trust
and confidence; he has fully complied with post-discipline requirements;
and he has made restitution to or settled all claims of persons injured
or harmed by his misconduct or, if not, has explained the failure or
inability to do so.
Taylor also has the burden of demonstrating by clear, satisfactory,
and convincing evidence that he has the moral character to practice law
in Wisconsin, that his resumption of the practice of law will not be
detrimental to the administration of justice or subversive of the public
interest, and that he has fully complied with the terms of the orders of
revocation and court rules.
Further information may be obtained from Office of Lawyer Regulation
(OLR) Investigator Mary Ahlstrom or Assistant Litigation Counsel Julie
M. Falk, 110 E. Main St., Suite 315, Madison, WI 53703, (877) 315-6941
(toll-free).
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Disciplinary Proceeding against Alan D.
Eisenberg
On March 2, 2004, the Wisconsin Supreme Court suspended the law
license of Alan D. Eisenberg, 62, Milwaukee, for one year, commencing
April 6, 2004. The court also ordered Eisenberg to pay the costs of the
disciplinary proceeding ($27,260.30) and restitution to his client
($2,775.69). Eisenberg promptly paid the costs, made restitution, and
requested that the effective date of his suspension be delayed. The OLR
opposed that motion, and the court denied it.
The suspension is based on Eisenberg's misconduct in five matters. In
the first matter, a client retained an associate in Eisenberg's office
to represent her in a divorce. When the associate left the firm, the
client elected to have the associate continue representing her. Over a
five-week period, the associate attempted to obtain her client's file
from Eisenberg's office and obtain a partial refund of the $5,000
retainer the client had paid. The associate had to file a motion with
the court to obtain her client's file. In addition, Eisenberg failed to
return any portion of the retainer to the client, although the
associate's billing reflected that the client was entitled to receive
$2,775.69. The court found that by failing to promptly surrender to the
client her file and any unearned fee, Eisenberg failed, upon termination
of the representation, to take steps to the extent reasonably
practicable to protect a client's interests, in violation of SCR
20:1.16(d). During the investigation of this matter, Eisenberg submitted
information purporting to show that the entire retainer had been earned.
However, he failed to indicate that the employees whose affidavits
supported this claim had no personal knowledge of the work the associate
had performed. The court found that in submitting this information to
the OLR, Eisenberg violated SCR 20:8.4(c), by engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation, and former
SCR 22.07(2), by failing to fully and fairly disclose all facts
pertaining to alleged misconduct.
In the second matter, Eisenberg filed an application to appear pro
hac vice in California. In his affidavit to support the application,
Eisenberg stated that he had never been suspended from the practice of
law when, in fact, Eisenberg's license had twice been suspended. The
court found that Eisenberg thereby violated SCR 20:8.4(c), by engaging
in conduct involving dishonesty, fraud, deceit, or misrepresentation,
and SCR 20:3.3(a)(1), by knowingly making a false statement of fact to a
tribunal.
In the third matter, Eisenberg appeared before a Wisconsin Department
of Transportation hearing examiner. During the hearing Eisenberg was
highly disruptive, refused to obey the procedural rules, and left before
the hearing was over. The court found that Eisenberg engaged in conduct
intended to disrupt a tribunal, in violation of SCR 20:3.5(c). The court
also found that Eisenberg's conduct violated that part of the attorney's
oath, SCR 40.15, which states that an attorney shall refrain from
offensive personality, and SCR 20:8.4(g), which states that it is
misconduct to violate the attorney's oath.
In the fourth matter, Eisenberg represented a woman regarding zoning
and building violations that had been issued against the client's
investment property. Eisenberg encouraged her to sell the property. At
some point, the client entered into a listing contract to sell the
property with Alan Eisenberg Real Estate Company. Eisenberg is also a
real estate broker and runs Alan Eisenberg Real Estate out of the same
office as his law firm. Eisenberg did not explain to his client the
potential conflict of interest of his representation of her in court
regarding the violations while acting as her broker to sell the
property, nor did he have her sign a conflict waiver. Eisenberg also
failed to give his client a reasonable opportunity to seek the advice of
independent counsel. The court found that Eisenberg's actions violated
SCR 20:1.8(a), which proscribes entering into a business transaction
with a client except under certain circumstances.
In the fifth matter, Eisenberg was in Oregon representing a man
facing felony charges. The client found a detective's card at his home
with a request that he call the detective and informed Eisenberg of this
fact. Eisenberg placed a call to the Corvallis, Oregon, 911 Dispatch
Center on a nonemergency line and stated that he needed to talk to a
detective regarding a "life or death emergency." In a series of calls to
the center, Eisenberg used vulgar language, demanded to speak with the
detective, and threatened to "have [the detective's] badge" if he failed
to contact Eisenberg immediately. The court found that Eisenberg's
conduct in this matter served no substantial purpose other than to
embarrass, delay, or burden a third person, in violation of SCR 20:4.4.
In addition, the court found that Eisenberg's conduct violated SCR
4.1(a), which proscribes making a false statement of fact to a third
person, and SCR 20:8.4(c). Finally, the court found that the conduct
violated SCR 40.15 (the attorney's oath) and SCR 20:8.4(g).
While noting that Eisenberg's misconduct and prior discipline, which
includes two previous suspensions and a public reprimand, would warrant
revocation, the court instead imposed a one-year suspension, stating
that, given his age, a revocation might effectively prohibit Eisenberg
from resuming his practice. The court indicated that it hopes the
shorter suspension will be effective in deterring other attorneys from
engaging in similar misconduct and motivate Eisenberg to avoid
misconduct should he choose to return to the practice of law.
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Public Reprimand of Jodie L.
Bednar-Clemens
The OLR and Jodie L. Bednar-Clemens agreed to an imposition of a
public reprimand pursuant to SCR 22.09(1). A referee appointed by the
supreme court thereafter approved the agreement and issued the public
reprimand in accordance with SCR 22.09(3) on March 17, 2004.
The reprimand included two grievances filed in connection with
Bednar-Clemens's handling of three probate estates. In the first file, a
woman died, leaving a son and daughter, with the son being appointed as
the personal representative. After selling the woman's home, the
personal representative delivered to Bednar-Clemens a check for more
than $60,000, representing the woman's daughter's share of the home sale
proceeds. Bednar-Clemens did not deposit the check into her client trust
account or inform the daughter of the receipt of the check. The check
was left uncashed in the file. For five months, Bednar-Clemens ignored
calls from the daughter's lawyer, who then contacted the OLR.
Bednar-Clemens subsequently sent the check to the daughter's lawyer,
seven months after the home was sold. However, the decedent's stock,
which was in Bednar-Clemens' possession, remained unsold. The personal
representative had not been able to get in touch with Bednar-Clemens for
more than one year.
Bednar-Clemens failed to file an inventory and failed to respond to
the court's notices of overdue inventory and delinquent estate.
Substitute counsel was appointed to complete the estate.
Bednar-Clemens failed to act with reasonable diligence and
promptness, contrary to SCR 20:1.3; failed to keep a client reasonably
informed about case status or promptly comply with reasonable requests
for information, contrary to SCR 20:1.4(a); failed to timely deposit
funds belonging to a client into a client trust account, contrary to SCR
20:1.15(a); and failed to promptly inform the woman's daughter of
receipt of the sale proceeds or promptly deliver them, contrary to SCR
20:1.15(b).
The second grievance involved Bednar-Clemens's handling of two
estates that were opened in 1995 and 1996. The 1995 estate was opened
after a woman died testate, leaving her estranged husband (a divorce was
pending), along with children and grandchildren. Although a codicil
named the woman's husband as personal representative, Bednar-Clemens
asked the court to appoint the woman's daughter as personal
representative, bypassing the woman's husband on the ground that he
suffered from senile dementia. Bednar-Clemens did not request that a
guardian ad litem be appointed for the husband in the estate,
notwithstanding statutory provisions requiring that a guardian ad litem
be appointed for any person interested in an estate who is incompetent
and without a guardian. The only property interest that the woman left
her husband was his right to use furniture and household goods as long
as he maintained a homestead at their marital home.
Bednar-Clemens considered the estate to have been fully administered
by early 1996, after specific bequests and financial accounts were
distributed and tax forms were completed. It is not known if household
goods were distributed to the husband before he died in 1997.
Bednar-Clemens took no action on the estate from 1996 until 2003, even
though she had not filed an inventory or final account and had ignored
notices from the court regarding those requirements. In 2003, the court
issued an order to close the estate.
The 1996 estate was opened after a testator died. The will evenly
divided the estate between the testator's son and a daughter, with the
son being appointed as personal representative. During 1997,
Bednar-Clemens helped the personal representative to liquidate and
distribute assets to himself and his sister.
During 1997 and 1998, Bednar-Clemens ignored notices from the court
that the estate was delinquent and that an inventory was required. In
2003, the court issued an order to close the estate.
As evidenced by her own admission of unfamiliarity with the probate
process, including the means by which to close estates, by her failure
to promptly administer the estates, and by her failure in the 1995
estate to have a guardian ad litem appointed for the decedent's husband,
Bednar-Clemens failed to provide competent representation as required by
SCR 20:1.1. Bednar-Clemens violated SCR 20:1.3 by failing to file
inventories and other required documents and promptly close the estates.
In disregarding the court's notices, Bednar-Clemens violated SCR
20:3.4(c), which prohibits a lawyer from knowingly disobeying an
obligation under the rules of a tribunal except for an open refusal
based on an assertion that no valid obligation exists.
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Disciplinary Proceeding against Ty
Christopher Willihnganz
On March 26, 2004, the Wisconsin Supreme Court publicly reprimanded
Ty Christopher Willihnganz, 35, Oshkosh, for professional
misconduct.
In the fall of 1998, a client hired a partner in the law firm in
which Willihnganz was then an associate to represent the client on a
municipal ordinance citation for trespassing. The partner entered a not
guilty plea for the client, who signed an authorization allowing the law
firm to appear on the client's behalf without the client being present.
The partner assured the client in writing that no action would be taken
unless it was first authorized by the client. The citation was scheduled
for trial in late October 1998, but the partner was unavailable on that
date, and the case was assigned to Willihnganz. The client was not given
written notice of the trial date.
The partner instructed Willihnganz to contact the client in order to
prepare for trial and to contest the citation. On the scheduled trial
date, Willihnganz appeared on the client's behalf, but the client was
not present. Willihnganz entered a no contest plea, the client was found
guilty, and a forfeiture was assessed against the client. Following the
trial, Willihnganz told the partner what had occurred in court and that
before the trial, Willihnganz had left several telephone messages for
the client that were not returned. Willihnganz did not give the client
written notice of the trial outcome. The client remained unaware of the
forfeiture, and consequently, his driver's license was suspended for
nonpayment of it. The client had to pay the forfeiture, plus a fee, to
get his driver's license reinstated.
By changing the client's plea from not guilty to no contest without
the client's knowledge or consent, which resulted in the client being
found guilty of trespass, Willihnganz violated SCR 20:1.2(a).
Willihnganz also failed to timely respond to OLR staff requests to
provide information, and he completely failed to respond to requests
from a local district committee investigating the matter, contrary to
SCR 21.15(4), 22.03(2), 22.03(6), and 22.04(1).
Willihnganz's license has been suspended since June 6, 2001, for
noncompliance with CLE reporting requirements. His license remains
suspended.
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Disciplinary Proceeding against Elizabeth
Cavendish-Sosinski
On March 26, 2004, the Wisconsin Supreme Court suspended the law
license of Elizabeth Cavendish-Sosinski, 35, for nine months. The court
further ordered that, prior to reinstatement, Cavendish-Sosinski must
demonstrate control of any depression or mental health problems that
might interfere with her ability to practice law in accordance with
accepted professional standards. The court based Cavendish-Sosinski's
suspension upon 25 counts of misconduct in nine client matters and one
additional OLR inquiry.
In the first matter, Cavendish-Sosinski failed, in violation of SCR
20:1.4(a), to communicate with her client regarding the status of the
habeas corpus petition filed on his behalf. Cavendish-Sosinski also
failed to timely respond to requests for information from the OLR and
from the district committee subsequently assigned to investigate the
grievance, in violation of SCR 22.03(2) and 22.04(1).
In the second matter, a woman retained Cavendish-Sosinski, who then
failed to appear for a final pretrial hearing regarding a municipal
ticket. Her client also did not appear, based on Cavendish-Sosinski's
advice that her appearance was not necessary. The court, therefore,
entered a default against her client. Cavendish-Sosinski's conduct
constituted a lack of diligence, in violation of SCR 20:1.3.
Cavendish-Sosinski also failed to keep her client updated regarding the
status of the matter, in violation of SCR 20:1.4(a). Finally,
Cavendish-Sosinski violated SCR 22.03(2), 22.03(6), and 22.04(1) by
failing to cooperate with the OLR and its district committee.
In the third matter, the state public defender (SPD) appointed
Cavendish-Sosinski in March 1998 to represent a defendant in
post-conviction proceedings. Cavendish-Sosinski did not speak with her
client until May 2000, despite her repeated promises in the preceding
two years that she would do so. The SPD wrote to Cavendish-Sosinski
numerous times directing her to communicate with her client. The SPD, in
August 2001, removed Cavendish-Sosinski from the representation and
informed her that, unless she voluntarily surrendered her certification
to accept SPD appointments, it would take steps to decertify her.
Cavendish-Sosinski failed to act with reasonable diligence in
representing her client, violating SCR 20:1.3. Cavendish-Sosinski also
failed to communicate adequately with her client, violating SCR
20:1.4(a). Finally, Cavendish-Sosinski violated SCR 22.03(2) and
22.04(1) by failing to cooperate with the OLR and its district
committee.
The fourth matter resulted from Cavendish-Sosinski's failure to
cooperate with the OLR and its district committee in the investigation
of a grievance in violation of SCR 22.03(2) and 22.04(1). The OLR
dismissed the underlying grievance as not clearly evidencing
misconduct.
The fifth matter arose out of Cavendish-Sosinski's handling of a
SPD-appointed appeal. Cavendish-Sosinski made initial contacts with her
client, promising to visit him in prison. However, after these initial
contacts Cavendish-Sosinski did not respond to the client's requests for
information, including his requests for his transcripts.
Cavendish-Sosinski failed to timely file the transcripts and, as a
result, her client lost his appellate rights. Cavendish-Sosinski
violated SCR 20:1.3 by her lack of diligence, SCR 20:1.4(a) by failing
to communicate with her client, and SCR 20:1.16(d) by failing to return
her client's transcripts. Cavendish-Sosinski also failed to cooperate
with the OLR and its district committee in the investigation of the
matter, in violation of SCR 22.03(2) and 22.04(1).
In the sixth matter, Cavendish-Sosinski was hired to attempt to quash
a bench warrant. Cavendish-Sosinski was hired in late summer of 2000,
but her client did not hear from her until March 2001.
Cavendish-Sosinski never took action to resolve the warrant, despite
urgent pleas from the client in April and June 2001, wherein he
indicated that the existence of the warrant was interfering with his job
as an over-the-road driver and with his plans to marry.
Cavendish-Sosinski violated SCR 20:1.3 by her lack of diligence, and SCR
20:1.4(a) by her failure to communicate with her client.
Cavendish-Sosinski also violated SCR 22.03(2) by failing to cooperate
with the OLR in its investigation of the grievance.
In the seventh matter, a man retained Cavendish-Sosinski to represent
him regarding a municipal ticket, as well as two misdemeanor charges in
circuit court. A hearing in the municipal case was set for Dec. 20,
2001. Cavendish-Sosinski advised her client that he did not have to
appear. On Dec. 22, 2001, the client received notice that the municipal
court had entered a default judgment against him due to his failure to
appear. In the misdemeanor cases, a hearing was scheduled for Dec. 27,
2001. Cavendish-Sosinski told the client's mother that the hearing had
been adjourned at Cavendish-Sosinski's request. However, no adjournment
had been requested or granted. The client appeared pro se, the cases
were rescheduled, and the client hired new counsel and requested that
Cavendish-Sosinski refund his retainer. Cavendish-Sosinski did not pay
the refund until May 2002, several months after the OLR initiated a
formal grievance investigation. Cavendish-Sosinski violated SCR 20:1.3
by her lack of diligence and SCR 20:1.16(d) by failing to promptly
refund the retainer. Cavendish-Sosinski also violated SCR 22.03(2) by
failing to cooperate with the OLR in its investigation of the
grievance.
In the eighth matter, Cavendish-Sosinski represented a woman in a
municipal case, beginning in December 2001. In the early months of 2002,
Cavendish-Sosinski worked on the case and met with her client several
times, including a final meeting in March 2002. In April 2002, the
client received notice that the municipal court had entered a default
judgment against her. The client and her husband thereafter attempted
unsuccessfully on numerous occasions to contact Cavendish-Sosinski by
phone. The client sent Cavendish-Sosinski a certified letter in May
2002, but received no response. Cavendish-Sosinski, in response to the
client's grievance, indicated that she considered the case closed.
Cavendish-Sosinski violated SCR 20:1.4(a) by failing to respond to her
client's requests for information. In addition, Cavendish-Sosinski
violated SCR 22.03(2), by failing to cooperate with the OLR in its
investigation.
In the ninth matter, Cavendish-Sosinski, on appointment by the SPD in
June 2001, represented a man in two post-conviction appeals.
Cavendish-Sosinski did not communicate with her client and did not
respond to the SPD's inquiries regarding her lack of contact with him.
In September 2002, the court of appeals, acting on a request by the SPD,
directed Cavendish-Sosinski to file affidavits proving that she had
forwarded court records and transcripts to the SPD's appellate division.
On Sept. 18, 2002, Cavendish-Sosinski sent the materials to the SPD.
Cavendish-Sosinski violated SCR 20:1.3, by her lack of diligence, and
SCR 20:1.4(a), by failing to communicate with her client. In addition,
Cavendish-Sosinski violated SCR 22.03(2), by failing to cooperate with
the OLR's investigation.
The 25th and final count of misconduct occurred in the course of an
inquiry the OLR initiated to address Cavendish-Sosinski's purported
depression and its effect on her ability to practice law.
Cavendish-Sosinski never provided a written response to address
questions raised in the inquiry and did not cooperate with the district
committee's initial requests for information. Cavendish-Sosinski
therefore failed to cooperate with an OLR investigation and with a
district committee, in violation of SCR 22.03(2) and 22.04(1).
Cavendish-Sosinski had no prior discipline. Cavendish-Sosinski's law
license had been suspended by the court in December 2003 for her failure
to cooperate with an OLR investigation.
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Summary Suspension of Gary R. George
On Feb. 2, 2004, pursuant to SCR 22.20, the OLR filed a motion for
summary license suspension against Gary R. George, 50, Milwaukee. The
motion was based upon George's plea of guilty to one count of conspiracy
to commit offenses involving federal program funds and to commit wire
fraud. On Feb. 3, 2004, the Wisconsin Supreme Court issued an order to
show cause why the OLR's motion should not be granted. By letter dated
Feb. 26, 2004, George informed the court that he would not oppose the
suspension of his license. On March 8, 2004, the Wisconsin Supreme Court
issued an order summarily suspending George's license, commencing April
1, 2004.
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