Wisconsin
Lawyer
Vol. 81, No. 11, November
2008
Private Reprimand Summaries
The
Office
of Lawyer Regulation, 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 lawyers. The
Office of Lawyer Regulation has offices located at 110 E. Main
St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941. The full
text of items summarized in this column can be viewed at
www.wicourts.gov/olr.
Failure to Consult with Client, Keep Client
Informed, and Timely Return Case File; Conflict of Interest
Violations of SCR 20:1.2(a), 20:1.4(a), 20:1.7(a), and 20:1.16(d)
An attorney represented a building contractor as the plaintiff in a
suit to recover an unpaid debt. The defendant brought a third-party
defendant into the suit. Without consulting the contractor or obtaining
the contractor’s written consent, the attorney also represented
the adverse third-party defendant in the suit and in matters other than
the suit commenced by the contractor, in violation of former SCR
20:1.7(a).
The defendant moved for a change of venue and to have the
attorney removed because of the apparent conflict of interest. Without
objection from the attorney, the change-of-venue motion was granted. The
attorney successfully argued for consolidating four cases involving his
two clients. Before his eventual withdrawal as the contractor’s
counsel, the attorney signed a stipulation on behalf of adverse parties.
The attorney did not explain to the contractor the ramifications of any
of these developments, nor did he consult with the contactor about them,
contrary to SCR 20:1.4(b) and former 20:1.2(a).
Following the attorney’s withdrawal from the
representation, the contractor and successor counsel made numerous
requests for the case file, but the attorney delayed in turning over the
file for three months, in violation of former SCR 20:1.16(d).
The attorney had no prior discipline.
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Convictions of Battery and
Disorderly Conduct
Violation of SCR 20:8.4(b)
An attorney was arrested and later charged with battery and
disorderly conduct in connection with a domestic dispute. The attorney
entered into a deferred prosecution agreement, one of the conditions of
which was to have no contact with the victim. The attorney later
violated this condition by contacting the victim. The attorney was
charged with misdemeanor bail jumping, the deferred prosecution
agreement was revoked, and the attorney was convicted of the battery and
disorderly conduct charges and sentenced to 18 months of probation.
By engaging in conduct leading to a criminal conviction on one
count of misdemeanor battery and one count of misdemeanor disorderly
conduct, the attorney violated SCR 20:8.4(b) (unchanged by amended SCR
20:8.4, effective July 1, 2007), which states, “It is professional
misconduct for a lawyer to … commit a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects.”
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Criminal Act Reflecting Adversely on Fitness
to Practice
Violation of SCR 20:8.4(b)
An attorney pleaded guilty to one count of carrying a concealed
weapon, a Class A misdemeanor, in violation of Wis. Stat. section
941.23. The attorney was sentenced to two months in the local jail with
Huber privileges.
By engaging in acts that led to a conviction of one count of
carrying a concealed weapon, contrary to section 941.23, the attorney
violated SCR 20:8.4(b), which states, “It is professional
misconduct for a lawyer to … commit a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness as a
lawyer in other respects.”
The attorney had no prior discipline.
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Failure to Communicate; Lack of
Diligence
Violations of Former SCR 20:1.4(a), and 20:1.4(b)
In the first of two matters, an attorney representing a client in a
worker’s compensation matter provided minimal information to the
client about her case over four years’ time and failed to respond
promptly to numerous telephone calls from the client. The attorney also
failed to provide any detailed explanation of the process by which
worker’s compensation cases were to be handled and failed to
provide any written explanation discussing the relative merits of the
client’s case before making a settlement recommendation. The
attorney had not documented any oral discussions he had with the client
to demonstrate that he had communicated with the client in a manner that
would enable her to make informed decisions regarding the
representation.
By failing to communicate in writing with the client over an
extended time regarding any aspect of her claim, and by failing to
respond to the client’s numerous telephone calls and requests for
information regarding her claim, the attorney violated former SCR
20:1.4(a) (effective before July 1, 2007). By failing to explain matters
regarding the worker’s compensation claim sufficiently to enable
the client to make informed decisions regarding her claim, failing to
document any discussions with the client regarding the process by which
worker’s compensation claims are handled, and failing to discuss
the relative merits of the client’s case or any other aspect of
her claim, the attorney violated SCR 20:1.4(b).
In a second matter, a client hired the attorney to represent him
in a worker’s compensation matter. The attorney litigated the
claim, but the claim was denied by the administrative law judge (ALJ).
The attorney appealed the matter to the Wisconsin Labor and Industry
Review Commission (LIRC). LIRC affirmed the ALJ’s findings and
order.
The attorney met with the client shortly after LIRC issued its
decision. The client said he told the attorney that he wanted to file an
appeal, and the attorney agreed to file an appeal. Although the attorney
denied that he agreed to file an appeal and said he only agreed to
research whether an appeal was appropriate, the attorney failed to
document the discussions regarding an appeal, including whether an
appeal was appropriate or whether he intended to file an appeal, and
ultimately the attorney did not file an appeal. By failing to file an
appeal in a worker’s compensation matter, or otherwise document
discussions with the client regarding the appeal, including whether an
appeal was appropriate or whether he intended to file an appeal, the
attorney violated SCR 20:1.4(b).
The client sent numerous emails to the attorney regarding the
appeal and left many telephone messages. The attorney failed to respond
to the client’s emails or telephone calls. By failing to respond
to the client’s email and telephone messages regarding the status
of his appeal, the attorney violated former SCR 20:1.4(a) (effective
before July 1, 2007).
The attorney had one prior private reprimand, issued subsequent
to the events described.
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Criminal Act Reflecting Adversely on Fitness
to Practice
Violation of SCR 20:8.4(b)
An attorney was convicted of one count of misdemeanor violation of a
harassment injunction order. Over the course of two days, the attorney
called the petitioner at least 30 times, leaving messages on almost
every call. The attorney’s sentence included a fine. The attorney
self-reported his conviction as required under SCR 21.15(5).
By his acts, the attorney violated SCR 20:8.4(b), which states,
“It is professional misconduct for a lawyer to … commit a
criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects.”
The attorney had no prior discipline.
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Criminal Act Reflecting Adversely on Fitness
to Practice
Violation of SCR 20:8.4(b)
An attorney was convicted of one count of misdemeanor third-offense
operating while under the influence. The attorney’s sentence
included a fine, license revocation for 30 months, a court-ordered
alcohol assessment, and 100 days of confinement in the house of
correction with Huber work-release privileges. The attorney
self-reported his conviction as required under SCR 21.15(5).
By his acts, the attorney violated SCR 20:8.4(b), which states,
“It is professional misconduct for a lawyer to … commit a
criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects.”
The attorney had no prior discipline.
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Ex Parte Communication; Knowing Violation of
Court Order
Violation of SCR 20:3.5(a) and (b) and 20:3.4(c)
The attorney’s misconduct occurred in two matters. In the
first, the attorney represented the father in a child placement matter.
After a trial, the circuit court judge awarded sole custody and primary
placement of the children to their mother. The attorney requested a stay
pending appeal, but the court of appeals denied the request for stay.
The attorney wrote to the chief judge of the circuit court,
criticizing the presiding judge’s decision in the custody case and
asserting that the presiding judge was a danger to families. The
attorney asked the chief judge to reassign the presiding judge from
family court. The attorney did not send copies of the letter to the
other attorneys involved in the case. Two days later, the attorney again
sent the same letter to the chief judge and this time copied the other
attorneys involved in the case. The attorney violated SCR 20:3.5(a) and
(b) when he wrote to the chief judge without providing copies of the
letter to the other attorneys in the case.
In a second
matter, two men, X and Y, had a history of suing each other. Eventually
X filed a pro se lawsuit seeking damages for various acts by Y.
The circuit court dismissed X’s lawsuit and permanently enjoined X
from filing any further lawsuit against Y arising from the same facts or
circumstances. X hired the attorney to represent him on the issue of
costs and fees and to file an appeal, which ended in a stipulation.
At X’s request, the attorney filed a new lawsuit against Y
to seek to recover past attorney fees. The attorney’s complaint
referred to some of the same events that formed the basis for X’s
prior lawsuit. Y’s attorney wrote to the attorney and reminded him
of the court’s injunction against X. The attorney slightly revised
the complaint but continued to seek damages based on certain events. The
court found that X had violated the injunction and that the complaint
and amended complaint were frivolous. The court ordered the attorney and
X jointly and severally responsible for attorney fees. The attorney paid
the portion of the fees for which he was found jointly and severally
liable.
The attorney violated SCR 20:3.4(c) when he continued to
prosecute a lawsuit that violated a prior, permanent injunction, after
adverse counsel reminded the attorney that the lawsuit violated the
injunction.
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Failure to Hold Disputed Funds in Trust,
Deposit Funds in Income-
generating Account, and Provide a Full Accounting
Violations of SCR 20:1.15(b)(1),
20:1.15(d)(3), 20:1.15(c)(2), and 20:1.15(d)(2)
An attorney represented a client in a civil action against the
client’s former employer. The client claimed that he was entitled
to certain fees that he had received after leaving the employer. The
former employer also claimed entitlement to a significant portion of the
fees, based on two separate agreements with the employee. While the
civil action was pending, the client deposited more than $200,000 in
disputed funds with the circuit court. The clerk of circuit court
ultimately returned those funds to the client via cashier’s check
because the civil action had been dismissed without adjudication as to
the ownership of those funds.
Shortly thereafter, the client gave the attorney the
$200,000-plus cashier’s check. The attorney placed the
cashier’s check in a locked desk drawer and held it there for
approximately five months. If the check had been deposited in an
income-generating trust account, it could have generated an additional
$3,400 in interest. Approximately five months after receiving the
cashier’s check, the lawyer deposited it in a money market
account. The account was titled as a law office account, and its tax
identification number (TIN) was the lawyer’s TIN. Although the
money market account was a demand account that provided the attorney
with check-writing capabilities, the attorney did not file an overdraft
reporting agreement with either the bank or the OLR, as required by SCR
20:1.15(h).
Counsel for the employer subsequently asked the attorney to
disburse the funds and provide an accounting that included
identification of the file names, the amount of the fees and expenses,
and the interest earned. The attorney contended that SCR 20:1.15(d) was
not applicable to the circumstances and indicated that an expert opinion
was being sought. While the attorney ultimately provided opposing
counsel with an accounting, the attorney waited approximately six months
to do so.
By holding a $200,000-plus cashier’s check in a locked, law
office desk drawer for approximately five months, when the ownership of
those funds was disputed between a client and the client’s former
employer, the attorney failed to hold in trust client funds that were
the subject of a dispute, in violation of SCR 20:1.15(b)(1) and
20:1.15(d)(3) (effective July 1, 2004).
By holding $200,000 in an account identified as a law office
account for approximately six months, when the ownership of those funds
was disputed between a client and the client’s former employer,
the attorney failed to hold in trust client funds that were the subject
of a dispute, in violation of SCR 20:1.15(b)(1) and 20:1.15(d)(3)
(effective July 1, 2004).
By failing to deposit the $200,000-plus cashier’s check
into an interest-bearing account for about five months, the attorney
failed to deposit client funds into an interest-bearing trust account or
an income-generating investment vehicle for the particular client or
client’s matter, the interest on which would be paid to the
client, in violation of SCR 20:1.15(c)(2) (effective July 1, 2004).
By failing to promptly provide the client’s former employer
with a full, written accounting regarding the money, pursuant to
opposing counsel’s request for such an accounting, the attorney
failed to promptly render a full written accounting regarding the
property to third parties having an ownership interest in the property
that was identified in at least two contracts, in violation of SCR
20:1.15(d)(2) (effective July 1, 2004).
The attorney had no prior discipline.
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Conflict of Interest; Failure to Give Prompt
Notice and Distribute
Proceeds; Premature Disbursement; and Conduct Involving Dishonesty,
Fraud, Deceit, or Misrepresentation
Violations of Former SCR 20:1.7(b), 20:1.15(d)(1),
20:1.15(e)(5)a., and 20:8.4(c)
An attorney represented two clients who were injured when the vehicle
they were riding in was hit by a second vehicle. The attorney violated
former SCR 20:1.7(b) by representing both clients, who had potentially
adverse claims, without consulting or obtaining written consent from
each client.
The attorney successfully negotiated separate settlements for
each client. When the insurance checks arrived, one client came into the
attorney’s office and stated that the other client remained in the
car because he was sick. The attorney gave the insurance check and
settlement release to the client who was in the office, and then the
attorney observed from his office window as the paperwork was delivered
to the client in the car. The signed paperwork was returned to the
attorney, who notarized the settlement release stating that the
client’s signature had been witnessed, subscribed, and sworn to
before him, a statement that was not true and violated SCR 20:8.4(c).
The client who returned to the office expressed an immediate need
for the net settlement checks. The attorney, with the understanding that
the checks were not to be cashed until the date on the checks, prepared
and gave to the client two post-dated checks drawn on his trust account,
in violation of SCR 20:1.15(e)(5)a., which states, “A lawyer shall
not disburse funds from any trust account unless the deposit from which
those funds will be disbursed has cleared, and the funds are available
for disbursement.”
Subsequently, the client who had remained in the car claimed he
never received a net settlement check after he endorsed the insurance
check and that he did not consent to having his check delivered to
another. By delivering the check to someone other than the intended
client, the attorney violated SCR 20:1.15(d)(1), which requires a
lawyer, on receipt of funds, to promptly deliver to the client any funds
the client is entitled to receive.
The attorney had no prior discipline.
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Providing Legal Advice While
License Suspended
Violation of SCR 31.10(1), enforceable through 20:8.4(f)
While an attorney was working as an associate in a law office, his
law license was administratively suspended pursuant to SCR 31.10(1) for
noncompliance with Wisconsin mandatory continuing legal education
requirements. The attorney continued to provide legal advice to clients
while his license was under suspension. SCR 31.10(1) provides, in
relevant part, that “[a] lawyer shall not engage in the practice
of law in Wisconsin while his or her state bar membership is suspended
under this rule.”
By practicing law while his law license was suspended, the
attorney violated SCR 31.10(1), as enforceable through SCR 20:8.4(f),
which states, in relevant part, that, “It is professional
misconduct for a lawyer to … violate a … supreme court
rule … regulating the conduct of lawyers….” The
attorney had one previous public reprimand.
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Criminal Act Reflecting Adversely on Fitness
to Practice
Violation of SCR 20:8.4(b)
An attorney pleaded no contest to one count of battery, domestic
abuse incident, contrary to Wis. Stat. sections 940.19(1) and
968.075(1)(a), a Class A misdemeanor. The attorney was sentenced to one
year of probation, sentence withheld, with the following conditions: 1)
payment of supervisory fees to the Department of Corrections; 2)
participation in and successful completion of all counseling and
treatment recommendations as deemed appropriate by the agent; and 3)
follow-up with any domestic abuse recommendations made by the counselor.
The attorney also was ordered to pay court costs totaling $143. The
attorney self-reported the conviction to the OLR.
By engaging in acts leading to a conviction of one count of
battery, domestic abuse incident, the attorney violated SCR 20:8.4(b),
which states, “It is professional misconduct for a lawyer to
… commit a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects.”
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Criminal Act Reflecting Adversely on Fitness
to Practice
Violation of SCR 20:8.4(b)
An attorney was convicted of one count of misdemeanor third-offense
operating while under the influence and one count of misdemeanor
third-offense operating with PAC.08. The attorney’s sentence
included a fine, jail for three months with Huber privileges, license
revocation for 30 months, and use of an ignition interlock for two
years. The attorney self-reported his conviction as required under SCR
21.15(5).
By his acts, the attorney violated SCR 20:8.4(b), which states,
“It is professional misconduct for a lawyer to … commit a
criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other
respects.”
The attorney had no prior
discipline.
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Criminal Act Reflecting Adversely on Fitness
to Practice
Violation of SCR 20:8.4(b)
An attorney was convicted of one count of misdemeanor second-offense
operating while under the influence. Field sobriety tests conducted by
an officer who responded to the scene showed that the lawyer was
intoxicated, and a breath test indicated that the lawyer’s blood
alcohol concentration was 0.20.
The lawyer pleaded guilty to the misdemeanor charge, and the
court sentenced the attorney to 60 days in jail with Huber privileges,
revoked his driver’s license for 12 months, fined him $894, and
ordered him to undergo an alcohol abuse assessment. Although the
attorney did not report his conviction to the OLR and the clerk of the
supreme court within five days as required by SCR 21.15(5), he credibly
explained that the two-week delay in reporting resulted from his receipt
of erroneous advice from his counsel.
By his act of driving while intoxicated, the attorney violated
SCR 20:8.4(b), which states, “It is professional misconduct for a
lawyer to … commit a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects.”
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Failure to Hold Unearned Fees in Trust and
Maintain Complete Records; Commingling; Allowing Prohibited Transactions
in Trust Account
Violations of SCR 20:1.15(b)(3), (b)(4),
(e)(4)c., d., e., and (f)(1)a., d., e.
An attorney with offices in two communities maintained a trust
account in each of those offices and had a longstanding practice of
combining the balances in the two trust accounts in order to determine
the amount that could be withdrawn for fees and the amount that needed
to remain in trust. The attorney would normally withdraw less than the
firm was entitled to for fees, but the trust account records failed to
adequately track the amount of earned fees that remained in trust for
each client. The fees were routinely withdrawn from just one of those
trust accounts (TA 1). In addition, beginning in the 1990s, the firm
accepted credit card payments for both advanced fees and earned fees,
and all of those payments were deposited to TA 1. The rules did not
explicitly prohibit credit card and other electronic transfers until
July 1, 2004.
In June 2006, a woman hired the lawyer’s office regarding a
divorce and paid a $4,500 advanced fee by credit card, which was
deposited directly to TA 1. Shortly thereafter, the attorney transferred
$4,000 of those funds to the firm’s business account via three
Internet transactions, despite the fact that the firm had not yet
provided $4,000 in services in that matter. Those transfers were,
however, in keeping with the firm’s practice of combining the
balances in its two trust accounts and disbursing all earned fees from
TA 1. Based on subsequent analysis of the activity in both trust
accounts, the OLR determined that the attorney had held $3,500 in earned
fees relating to a probate matter in the firm’s second trust
account for nearly a year, but that even with those earned fees in
trust, there were inadequate funds in the two trust accounts to cover
the total that needed to be held in trust for several clients.
In addition, between December 2004 and July 2006, the attorney
authorized six Internet transfers to the trust account, totaling
$4,646.75, and 31 Internet transfers from the trust account for fees,
totaling $29,701.18. However, the attorney failed to keep any record as
to whose funds were included in each of the Internet transfers. The
attorney also accepted 47 credit card payments, totaling $33,563.94, all
of which were deposited to TA 1. By accepting those credit card
payments, the attorney allowed a third party, the credit card vendor, to
make 47 electronic withdrawals from the trust account to pay a total of
$1,586.75 in credit card surcharges. While the attorney indicated that
the surcharges were taken into account when partial withdrawals were
made for earned fees, there is no record as to how the fees were reduced
by those credit card charges.
When reviewing the attorney’s trust account records, the
OLR discovered that the transaction registers failed to identify deposit
sources and the client to whom each deposit related. The OLR also
discovered that the attorney had not maintained duplicate deposit slips
for TA 1 after November 2005, and that duplicate deposit slips had never
been maintained for the second trust account. The OLR further
ascertained that the attorney regularly failed to identify the purpose
of each disbursement on the memo line of the related check, particularly
the checks that were disbursed to the law firm.
The attorney was privately reprimanded and required to attend an
OLR trust account management seminar, based on the following violations:
1) Disbursing $5,770.13 in unearned fees to the firm (SCR
20:1.15(b)(4));
2) Depositing earned fees to a trust account via credit card and
failing to disburse fees from trust as they were earned (SCR
20:1.15(b)(3));
3) Transferring funds to and from a trust account via the
Internet (SCR 20:1.15(e)(4)c.);
4) Allowing credit card payments and surcharges to be deposited
to and electronically withdrawn from a trust account (SCR
20:1.15(e)(4)e., 20:1.15(e)(4)d.); and
5) Failing to maintain adequate information in transaction
registers and checks and failing to maintain duplicate deposit slips
(SCR 20:1.15(f)(1)a., d., e.).
There was no evidence of harm to any client in connection with
these violations, and the attorney had no prior discipline.
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Lack of Diligence; Failure to
Promptly Deliver Funds; Dishonesty in Probate
Violations of SCR 20:1.3, former 20:1.15(d), and 20:8.4(c)
A woman hired an attorney to assist in the administration and
termination of her deceased mother’s trust. The attorney advised
the client regarding the desirability of the attorney keeping the assets
of the trust in his trust account so he could make the final
distributions after completing the taxes.
The client’s brother called the attorney to inquire as to
whether the trust’s tax returns were completed and was told they
were filed and nothing was owed. In fact, the taxes had not yet been
filed.
That same day, the attorney indicated to the brother that he
would be sending the trust assets to the client, per the client’s
wishes. The attorney did not do so until several months later, following
several phone calls from the brother and the client and after the client
had hired successor counsel to complete the administration and
termination of the trust.
The attorney admitted that he “made a number of promises
… that work would be completed sooner than occurred.” The
attorney asserted that during a two-month period during the
representation he was suffering from depression but that he subsequently
received treatment for the problem.
By failing to timely complete the administration and termination
of the trust, despite repeated assurances that he would do so, the
attorney violated SCR 20:1.3.
By failing to promptly turn over the trust assets, the attorney
violated former SCR 20:1.15(d)(1) (effective before July 1, 2007).
By telling the brother he had filed the tax returns when he had
not done so, the attorney violated SCR 20:8.4(c).
The attorney had no prior discipline.
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Failure to Return Unearned Portion of Fee and
to Hold Unearned Fees in Trust
Violations of Former SCR 20:1.5(a), 20:1.16(d), and 20:1.15(b)(4)
An attorney was hired to represent two clients in unrelated legal
matters pending in federal court. The attorney’s written fee
agreement with each client required the client to pay the attorney a
“nonrefundable flat fee” of $65,000 and $90,000,
respectively, plus advance payments toward the costs of the litigation.
The clients paid the attorney’s firm $50,000 and $60,000,
respectively, toward the attorney’s fee.
In each case the client became dissatisfied and terminated the
attorney’s representation within six weeks of hiring the attorney.
After the termination, the attorney refused to refund any portion of the
fees paid by the clients, asserting that the fees were not refundable
unless the attorney had been terminated for cause or the attorney
terminated the representation. Taking into consideration the reasonable
value of the work the attorney’s firm actually performed on behalf
of the clients, the attorney’s firm earned no more than $45,050 of
the $60,000 paid on behalf of the first client and no more than $7,155
of the $50,000 paid by the other client.
By failing to refund the unearned portion of the nonrefundable
flat fees paid to his firm by the clients after the clients terminated
the representation, when: 1) the attorney’s firm had not performed
sufficient services or provided sufficient benefit to the clients to
earn more than $45,050 of the $60,000 paid on behalf of the first client
and more than $7,155 of the $50,000 paid by the other client; and, 2) no
other facts or circumstances justified the firm’s retention of the
portion of the fees in excess of the value of the services actually
rendered to the clients, the attorney violated former SCR 20:1.5(a) and
20:1.16(d) (both effective before July 1, 2007).
By disbursing funds from his trust account to himself and an
investigator before he had received a signed fee agreement from the
first client, and, therefore, without the client’s authorization
to disperse the funds, the attorney violated former SCR 20:1.15(b)(4)
(effective before July 1, 2007).
The attorney had no prior discipline.
As a prior condition of the imposition of the private reprimand,
the attorney refunded $14,950 and $42,845 to his clients.
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