Vol. 76, No. 11, November 2003

Lawyer Discipline

• Hearing to Reinstate Mary P. Donovan
• Private Reprimand Summaries

Hearing to Reinstate Mary P. Donovan

On Dec. 17, 2003, at 9 a.m., a public hearing will take place before Referee John N. Schweitzer at the Law Offices of Roethe, Krohn, Pope, McCarthy, Haas & Robinson, 305 S. Main St., Janesville, Wis., on the petition of Mary P. Donovan, Cudahy, to reinstate her Wisconsin law license. Donovan formerly was an assistant city attorney for the city of Beloit in Rock County. Any interested person may appear at the hearing and be heard in support of, or in opposition to, the petition for reinstatement.

The Wisconsin Supreme Court suspended Donovan's law license for six months, effective July 1, 1997, for professional misconduct while acting as assistant city attorney for Beloit, consisting of her forging a certificate of completion of a deferred prosecution program and submitting it to a municipal court to obtain dismissal of charges against an acquaintance who had not been enrolled in the program, and forging a friend's signature on a letter submitted to municipal court requesting a jury trial and then representing the city on a charge against that friend. See Disciplinary Proceedings Against Donovan, 211 Wis. 2d 451, 564 N.W.2d 772 (1997).

As to reinstatement, Donovan is required to demonstrate by clear, satisfactory and convincing evidence that, among other things, she has not practiced law or engaged in certain law-work activity during her suspension; her conduct since the suspension has been exemplary and above reproach; she has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and will act in conformity with the standards; she 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; she has the moral character to practice law in Wisconsin; and she has fully complied with the terms of the suspension order and with the requirements of SCR 22.26.

Further information can be obtained from Office of Lawyer Regulation (OLR) Investigator Mary Ahlstrom, 110 E. Main St., Suite 315, Madison, WI 53703, (608) 267-7274 or (877) 315-6941 (toll free), or from OLR Retained Counsel Robert Krohn, 24 N. Henry St., Edgerton, WI 53534, (608) 884-3391.

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).

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).

Lack of Diligence; Failure to Communicate; Engaging in Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation

Violations of SCR 20:1.3, 20:1.4(a), and 20:8.4(c)

In March 2000, a client retained an attorney to probate the estate of his mother, who had died in February of 2000. Upon receipt of a letter from the court reminding the client and attorney of the 18-month deadline to close the estate, the client called the attorney and was assured that the attorney would take care of getting the estate closed. In October 2001, the client began inquiring as to why the estate was not closed. The attorney gave the client many reasons, including the illness of both his daughter and an attorney he shared office space with, as well as the fact that the attorney had taken a vacation. The attorney also was arranging for the care of his ailing father during this time. At a January 2002 hearing on an order to show cause why the estate had not been closed, the attorney admitted that he had lost the estate's file. The attorney had lost the file in August of 2001 but had never disclosed this to the client. The file was recreated and on April 13, 2002, the attorney filed the final documents required to close the estate.

In failing to close the estate for more than two years, the attorney failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. By knowingly omitting from his conversations with the client the fact that he had lost the estate's file, the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c).

In July of 2000, a client retained the attorney to probate the estate of his mother, who had died in June of 2000. In January of 2001, the client began inquiring as to the status of the estate. The attorney gave the client many reasons, including the illness of both his daughter and an attorney he shared office space with, and the fact that the attorney had taken a vacation. The attorney also was arranging for the care of his ailing father during this time. In December of 2001, the attorney made a final distribution. In January of 2002, the client requested a final accounting. The attorney failed to provide him with one until September of 2002. On Sept. 17, 2002, the attorney filed the final documents required to close the estate.

In failing to complete the estate for more than two years, the attorney failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. In failing to provide the client with a final accounting, the attorney failed to promptly comply with a reasonable request for information, in violation of SCR 20:1.4(a).

In July of 2000, a client retained the attorney to probate the estate of her uncle, who had died earlier that month. Beginning in December of 2000, the client sent the attorney a series of letters expressing her concern and anger over the amount of time it was taking him to complete the estate. On Oct. 23, 2002, the attorney filed the final documents required to close the estate. On Jan. 14, 2003, the attorney sent the client a copy of the final tax schedules and informed her that he had completed all work on the estate.

In failing to complete the estate for more than two and a half years, the attorney failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

The attorney has no prior discipline.

Unauthorized Practice of Law

Violation of SCR 20:5.5(a)

A law school graduate became licensed to practice law in Wisconsin and joined a branch of the U.S. armed services as a judge advocate shortly thereafter. The attorney was certified to practice before military courts' martial. The branch of the armed services in which the attorney was a member requires judge advocates to maintain a law license in good standing in at least one state. The attorney was licensed to practice law only in Wisconsin.

While he continued his service in the military, the attorney maintained his Wisconsin license in good standing for several years after his initial licensure. The attorney's Wisconsin law license was subsequently suspended for nonpayment of State Bar dues. The suspension lasted approximately six months, and the attorney acted to achieve reinstatement.

During the six-month license suspension, the attorney practiced as a judge advocate in court-martial cases, in violation of SCR 20:5.5(a), which states that a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. The attorney acted as criminal defense counsel in some of those cases, and in others, he provided representation at administrative discharge proceedings. The attorney also provided legal counsel to an officer and his staff regarding rules and procedures.

Failure to Provide Competent Representation; Failure to Protect a Client's Interest Upon Termination of the Representation

Violations of SCR 20:1.1 and 20:1.16(d)

A client retained an attorney to represent her business in a collection action. Initially, the court granted a judgment in favor of the client. The defendants, however, requested a de novo review of the court commissioner's decision. In August 2001, the client sent a payment for legal fees to the attorney with a letter expressing concern that the legal fees would soon exceed the amount that the client was seeking from the defendants. In response, the attorney advised the client that she would resign.

In a letter dated Sept. 13, 2001, the attorney advised the clerk of court that she was no longer representing the client. On Nov. 1, 2001, the attorney wrote to the client asking her to sign a stipulation allowing her to withdraw as counsel. Subsequently, the attorney and the client had a telephone conversation during which the client stated she had received a document from the court regarding the need to file a witness list. The attorney told the client that she could not assist her with the witness list because she was no longer her attorney. The attorney did not advise the client that she also needed to file a pretrial report. The attorney, however, did again ask the client to sign the stipulation allowing her to withdraw. The client asserts that she told the attorney that she would not sign it. In a letter dated Nov. 28, 2001, the attorney once more asked the client to sign the stipulation. The client, however, never signed it. Despite not receiving a signed stipulation from the client, the attorney never filed a motion to withdraw as required by Milwaukee County Circuit Court Rules and did not appear at the client's pretrial conference on Nov. 28, 2001.

By failing to familiarize herself with local court rules requiring a withdrawing attorney to file either a stipulation and order or a motion to withdraw, the attorney failed to follow the necessary steps to secure the court's permission to withdraw, thereby failing to provide competent representation, in violation of SCR 20:1.1. By failing to take reasonable steps upon withdrawal to inform the client of the need to file a witness list and a pretrial report, the attorney failed, upon termination of representation, to take steps reasonably necessary to protect the client's interests, in violation of SCR 20:1.16(d).

Lack of Diligence; Lack of Communication

Violations of SCR 20:1.3, 20:1.4(a), and 20:1.4(b)

The grievants filed a federal lawsuit pro se. After the defendant filed a motion to dismiss the complaint, the grievants retained an attorney to represent them. The attorney filed an amended complaint.

When the attorney failed to appear at a status hearing, the court dismissed the case without prejudice. The court reinstated the case at the attorney's request. Several months later, the court dismissed the case without prejudice for a second time because of the attorney's failure to prosecute the case. The attorney had failed to file responses to mandatory interrogatories and a witness list, and had failed to respond to a letter from the court inviting her to respond to an assertion made by the defendant that the action was stayed as a result of a ruling in a related lawsuit. The attorney never informed the grievants that their lawsuit had been dismissed and made no attempt to reinstate the lawsuit.

By failing to file responses to mandatory interrogatories and a witness list, and failing to respond to a letter from the court regarding a stay of proceedings in the lawsuit, which failures resulted in the lawsuit being dismissed for a failure to prosecute, and by failing to attempt to reinstate the lawsuit after it was dismissed for the second time, the attorney failed to act with reasonable diligence and promptness in representing her clients, in violation of SCR 20:1.3.

By failing to inform the grievants that their lawsuit had been dismissed, the attorney failed to keep her clients reasonably informed about the status of a matter, in violation of SCR 20:1.4(a). By failing to inform the grievants that she was withdrawing from the representation so that they could make a decision to retain other counsel or proceed pro se, the attorney failed to explain a matter to the extent reasonably necessary to permit her clients to make informed decisions regarding the representation, in violation of SCR 20:1.4(b).

The attorney had no prior discipline.

Failure to Provide Competent Representation; Lack of Communication with Client

Violations of SCR 20:1.1, 20:1.4(a)

A woman hired the attorney to represent her in a federal civil rights claim against a school district. The attorney had never before represented anyone in a civil matter with claims similar to those brought on behalf of the woman. The attorney's practice was generally limited to criminal law, paternity cases, and guardian ad litem work.

The attorney and the woman agreed that he would represent her and her son for a flat fee. After conducting research, the attorney filed a complaint in federal court on behalf of the woman and her son. The attorney filed the lawsuit against the individual members of the school board, the superintendent of schools, and a bus driver and her husband. The attorney conducted all of his own research and did not consult with anyone prior to filing the complaint.

The attorney conducted written discovery of the defendants. Adverse counsel subsequently took the depositions of the woman and her son. The son's deposition was taken first. When it was time for the woman's deposition, the child became restless. The attorney took the child out to get something to eat, thereby leaving the woman alone during the deposition while he left with her son. There was no discussion either of taking a break or postponing the woman's deposition to a later date.

Adverse counsel filed a motion for summary judgment. Although adverse counsel was one week late in filing the motion, the attorney for the plaintiff agreed to an extension. The attorney filed a timely response in opposition to the motion. The attorney, however, was seven weeks late in filing his own motion for summary judgment and did not ask for an extension or seek one from the court.

Although the attorney's tardiness was noted by the court, the court ruled on the merits of the defendants' submission and granted them summary judgment. The plaintiff's attorney had argued that further discovery would provide the necessary facts to support his claims. The attorney had not conducted the necessary discovery to establish a prima facia case when the summary judgment motions were due.

The court noted that the attorney's discovery should have preceded the summary judgment motions. The court found insufficient evidence to support the claim. However, there was no suggestion that the claims filed by the attorney were frivolous.

After receiving the order dismissing the complaint, the defendants filed a bill of costs of more than $250. The attorney failed to inform the woman of the bill of costs that was filed and entered against her.

In undertaking a case in an area of law that was outside his general field of practice; in preparing a complaint in the matter without any consultation or review by an experienced practitioner as to the content of the complaint; in failing to conduct discovery prior to summary judgment motions being filed; in filing a brief that exhibited a lack of legal skill, in that it failed to include evidence, case law, or legal argument that supported his causes of action; and in leaving his client alone during her deposition by adverse counsel, the attorney violated SCR 20:1.1, which requires a lawyer to provide competent representation to a client, defined as requiring "the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."

In failing to inform his client of a bill of costs that was filed and entered against her, the attorney 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.

Failure to Supervise Assistant; Ex Parte Communication; Lack of Competence; Failure to Abide by a Statute

Violations of SCR 20:4.3, 20:3.5(b), 20:1.1, 20:8.4(f), 20:4.2, 20:5.3(b), 20:5.3(c)

This reprimand is based on respondent attorney's conduct in two separate client matters.

In the first matter, the attorney represented the father in a paternity action and in a guardianship case regarding his child. Eighteen months after the paternity action was filed, the attorney requested a judicial substitution in that matter. The court denied this request because it was not timely.

The attorney's assistant sent the child's mother, who was unrepresented at that time, a letter and a copy of a court hearing notice in the guardianship case. The assistant's letter stated that the matter had been set for a pre-trial conference and that the mother's attendance was not required.

At one point in the proceedings, the client insisted that the attorney attempt to remove the guardian ad litem because he believed the guardian ad litem previously mistreated him and his mother. The attorney informally inquired of a judicial legal assistant whether it would be possible to appoint a new guardian ad litem in the paternity action. The attorney prepared an affidavit in support of a request to assign a new guardian ad litem, believing that the judicial legal assistant would appoint another guardian ad litem. The attorney did not send a copy to the guardian ad litem, because she did not intend to legally pursue any action and did not wish to have the information as part of the record.

By allowing her assistant to give advice to the mother of the child in the paternity action and to communicate with this mother in a way that implied that the attorney was a disinterested authority, the attorney failed to supervise her assistant as required by SCR 20:5.3(a) and (b) and therefore violated SCR 20:4.3, which provides, in part, that when dealing on behalf of a client with an unrepresented person, a lawyer shall not state or imply that the lawyer is disinterested.

By filing an affidavit in support of a request for substitution of the guardian ad litem without sending a copy of the affidavit to the guardian ad litem, or to any other party or party's representative, the attorney violated SCR 20:3.5(b), which provides that a lawyer shall not communicate ex parte with a judge except as permitted by law or for scheduling purposes.

By filing a motion for substitution of a judge well after the time permitted for such a motion, the attorney violated SCR 20:1.1, which requires a lawyer to provide competent representation to a client.

In a separate matter, the attorney represented maternal grandparents in their attempt to obtain custody and placement of their grandchild.

The mother of the child was married to a man who was not the child's father. The husband's attorney filed a petition for divorce on behalf of his client against the child's mother and a separate action seeking custody and placement of the child.

The court referred the matter to mediation to resolve the custody and placement issues. The case remained open and the husband's attorney remained the attorney of record.

The respondent attorney then filed a motion in the custody and placement case requesting an order that her clients, the maternal grandparents, be awarded sole legal custody and primary physical placement of the child, and an order to redirect child support payments. The attorney had the husband personally served with the notice and motion and did not serve his attorney.

The husband, the mother, and the maternal grandparents proceeded to a hearing and informed the court that an agreement had been reached in which the grandparents would have temporary placement of the child.

The attorney does not deny that the husband's attorney was not served with notice of her motion, nor does she deny that she communicated directly with the husband and did not send copies of her correspondence to the husband's attorney. According to the attorney, it was her understanding that the husband did not wish to involve an attorney, so she communicated directly with him.

By failing to serve the husband's attorney with the motion papers in the custody and placement matter, the attorney violated SCR 20:8.4(f), which states, "It is professional misconduct for a lawyer to violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers." The underlying statute violated in this matter is Wis. Stat. section 801.14(2), which provides in part:

"Whenever under these statutes, service of pleadings and other papers is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party in person is ordered by the court."

By serving the husband personally with the motion papers and by sending a June 2001 letter directly to the husband in the custody matter when the pleadings and court records clearly showed that the husband had an attorney, the attorney directly contacted a represented party, in violation of SCR 20:4.2.

By permitting her legal assistant to send the July 16, 2001, letter to the judge in the custody case without sending a copy to the husband's attorney, and by permitting her assistant to send a letter dated July 27, 2001, directly to the husband rather than to the husband's attorney, the attorney violated SCR 20:5.3(b) and (c).

The attorney has no prior discipline.

Conflict of Interest

Violation of SCR 20:1.7(a)

Respondent attorney was appointed by the court to represent a man in a child support contempt case. When the attorney was appointed, the man was incarcerated on drug trafficking charges; however, neither the attorney nor other court personnel knew that fact. The attorney attended the hearing on the contempt motion, and the court changed the man's support obligation to a flat rate rather than a percentage. In a subsequent hearing the court determined the man was not indigent.

At some point thereafter, the attorney discovered that the client had been incarcerated. The attorney made a motion on the client's behalf to vacate the court's previous two orders. The client also had wanted the attorney to challenge the rate of his child support, given his incarceration. A hearing on the motion was held and the court's original order was amended.

Sometime during the course of his representation of the client and before the motion hearing, the attorney began assisting a husband and wife with a real estate transaction. The attorney learned that the wife was the client's former spouse, who was adverse to the client in the child support matter. The attorney told the client of his representation of the client's former wife and her husband. While the attorney claimed he received an oral waiver of the conflict from the client, he failed to obtain a written waiver from either the client or the couple.

Because the attorney represented the client's former wife in a matter while at the same time representing the client against the client's former wife in a child support matter, without obtaining a written waiver from the client or from the client's former wife, the attorney violated SCR 20:1.7(a).

The attorney previously was privately reprimanded for a violation of SCR 20:1.7(b).

Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation

Violation of SCR 20:8.4(c)

Respondent attorney represented a client in an action against an automotive dealer. The action involved repairs made by the dealer to the client's vehicle. The claim ultimately was settled for $3,000.As part of the settlement, the dealer's attorney prepared a release agreement and delivered it to respondent attorney for execution by the client.

The agreement was prepared for the client's signature and the client's wife's signature, even though the client's wife was not a party to the action. The attorney knew the client's wife from a parallel claim involving the client, and he believed the client's wife to be supportive and cooperative in the litigation.

The attorney contacted the client and requested that both he and his wife come to his office to sign the agreement. When the client arrived without his wife, the attorney told the client his wife must sign the document. The client told the attorney that his wife was ill, that she was outside with their child in an illegally parked car, and that it was too cold for her to come in. The attorney explained the agreement to the client. The client then took the agreement outside and returned to the attorney's office with the document bearing both his and his wife's purported signatures. The client told the attorney that he had taken the agreement to his wife in the car and that she had signed the agreement. In reliance on his client's representations, the attorney then signed the agreement and returned it to the auto dealer's attorney.

Half of the settlement money was paid to the attorney's firm for fees. The client received the other half. The client told his wife shortly after signing the settlement agreement that he had settled the lawsuit and that he had signed her name in order to end the lawsuit, but he did not show her a copy of the settlement agreement. The client apparently gave half of his settlement amount to his wife. Later, the client and his wife began divorce proceedings. The wife requested from the attorney a copy of the agreement. The attorney promptly gave a copy to the wife's attorney after he was subpoenaed. Thereafter, the wife filed a complaint with the police indicating that she never signed the agreement, nor did she give her husband or the attorney permission to sign on her behalf. The attorney's client was charged with forgery.

The attorney did not intend to assist his client in defrauding the client's wife; however, because the attorney certified that both the client and the client's wife had signed the document "in [his] presence, with [his] consent, and after [he] had fully explained the effect thereof" when in fact neither the client nor his wife signed the agreement in the attorney's presence and the attorney did not explain to the wife the effect of the agreement, the attorney 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."

The attorney has no prior discipline.

Failure to Enter into a Written Contingent Fee Agreement in a Civil Matter

Violation of SCR 20:1.5(c)

The owners of a construction company retained an attorney to represent their company, which was a plaintiff in two lawsuits. Initially, the owners agreed to pay the attorney's fees on an hourly basis plus expenses. At some point during the litigation, the owners' financial situation worsened and they could no longer pay the attorney's fees on an hourly basis. The owners made an oral agreement with the attorney to proceed with the litigation on a one-third contingent fee basis. This agreement was never put in writing. The attorney continued to bill the owners for litigation expenses, which the owners paid. Eventually, the parties settled both lawsuits and a fee dispute arose as to the amount of the attorney fees to be paid. The attorney and the owners ultimately entered into a settlement agreement regarding the disputed fees.

By orally agreeing that his fee would be contingent upon the outcome of the two lawsuits, the attorney failed to put a contingent fee agreement in writing and to state the method by which the fee was to be determined, including the percentage or percentages that would accrue to the attorney in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses would be deducted before or after the contingent fee was calculated, in violation of SCR 20:1.5(c).

The attorney had a prior 60-day suspension and public reprimand.

Lack of Competence; Lack of Diligence

Violations of SCR 20:1.1 and 20:1.3

In May 1998 the respondent attorney began representing a woman in a bankruptcy matter. A partner in the attorney's firm simultaneously was representing the woman on post-divorce matters and referred the woman to the attorney to handle the bankruptcy.

The attorney prepared a Chapter 13 bankruptcy petition and schedule for the woman based on information the woman gave him. Between May 28, 1998, and

Oct. 1, 1998, information was readily available from the partner's files on the woman, indicating the woman was not fully disclosing her assets to the attorney. The attorney disputes whether he should have known about such information; however, evidence of the woman's full assets was indisputably made clear to the attorney during a deposition on Oct. 1, 1998.

During the deposition the woman fully disclosed all the assets she previously failed to disclose and then faxed the attorney materials substantiating these assets. The attorney failed to amend the bankruptcy schedules to reflect the assets, and the woman's bankruptcy was subsequently dismissed at a hearing on Oct. 21, 1998. The bankruptcy was not only dismissed, but the woman was admonished by the judge and subsequently investigated by the FBI for bankruptcy fraud due to what the judge considered material omissions on her bankruptcy schedules.

The attorney's failure to amend the bankruptcy pleadings after becoming aware that they were substantially inaccurate violated SCR 20:1.1, which states, "A lawyer shall provide

competent representation to a client. Competent representation requires

the legal knowledge, skill, thoroughness, and preparation reasonably necessary

for the representation."

In failing to amend the bankruptcy schedules before the Oct. 21, 1998 hearing, the attorney also violated SCR 20:1.3, which states, "A lawyer shall act with reasonable diligence and promptness in representing a client."

Candor Toward the Tribunal: Making a False Statement of Fact to a Court in an Affidavit

Violation of SCR 20:3.3(a)(1)

An attorney represented a business that had a default judgment taken against it by a customer. The business erred in providing services to the customer, which resulted in the customer incurring substantial charges owed to a third party. The customer obtained a default judgment against the business for the amount owed to the third party plus costs. After the default was entered, the business retained the law firm where the attorney was an associate.

Over the ensuing year, the firm made various attempts to resolve the matter, including filing several motions and undergoing mediation. Eventually, the firm undertook negotiations with the third party's collection agency to reduce the amount owed by the customer to the third party and, consequently, the amount owed by the client to the customer. The firm reached a tentative agreement with the collection agency, which the third party then needed to approve. The associate attorney was instructed to finalize the settlement.

The associate worked with the collection agency to obtain a release and settlement agreement from the third party. Before receiving a signed agreement acknowledging approval of the settlement by the third party, the associate filed an affidavit in support of a motion for modification and reduction of the judgment, wherein he represented to the court that the agreement had been finalized. The court reduced the amount of the judgment owed by the associate's client to its customer based upon the affidavit.

Following entry of the order reducing the judgment, counsel for the customer learned that the settlement agreement drafted by the associate was not acceptable to the third party. The customer's counsel then moved for relief from the court's order reducing the judgment owed to the customer. The court granted the motion and vacated its order, noting that the associate's affidavit had created a misimpression that the agreement with the third party was finalized. The associate admitted that he knew that the third party's legal department had not yet approved the settlement when he filed his affidavit.

By submitting an affidavit to the court stating that an agreement had been reached when the associate knew that final approval had not been given, the associate knowingly made a false statement of material fact to a tribunal, in violation of SCR 20:3.3(a)(1).

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