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    Wisconsin Lawyer
    September 01, 2001

    Wisconsin Lawyer September 2001: Lawyer Discipline

     

    Wisconsin Lawyer September 2001

    Vol. 74, No. 9, September 2001

    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.

    Public Reprimand of Thomas J. Fink

    In an order filed June 28, 2001, the supreme court publicly reprimanded Thomas J. Fink, 65, Menasha, for professional misconduct stemming from representation of a man in a probation revocation proceeding. In violation of SCR 20:1.4(a), Fink failed to provide the client with documents pertaining to the revocation proceeding, failed to keep the client reasonably informed about the case status, and failed to promptly respond to the client's reasonable requests for information in the matter. After his representation of the client in the revocation proceeding concluded, Fink violated SCR 20:1.16(d) by failing to provide the client with a copy of the case file and otherwise failing to take reasonable steps to protect the client's interests.

    Fink violated former SCR 21.03(4) and former SCR 22.07(2), each in effect prior to Oct. 1, 2000, by failing to respond to BAPR's written requests for a response to the client's grievance, and, after referral of the case to a district investigative committee, by making a misrepresentation to the committee concerning his method of handling collect calls at a time relevant to the client's allegations of a lack of communication.


    Disciplinary Proceeding Against Donald J. Harman

    On June 26, 2001, the Wisconsin Supreme Court ordered a six-month suspension of the law license of Donald J. Harman, 70, La Crosse, effective Aug. 1, 2001. Harman engaged in misconduct in two matters.

    In the first matter, Harman represented a man on a personal injury claim stemming from an automobile accident. An insurer provided Harman with notice of a subrogation claim. The case settled, and the insurer for the other driver delivered a check to Harman, made payable to Harman's client, Harman, a chiropractor who treated the client, and the subrogated carrier. Harman endorsed the check on behalf of the subrogated carrier without authorization to do so, contrary to SCR 20:8.4(c).

    Upon receipt of the settlement funds, Harman failed to notify the subrogated carrier that he was holding funds for it in trust, and instead, after waiting approximately 30 days, Harman sent the subrogated carrier a check representing less than one-fourth of its claim, a reduction that was not the product of any negotiation or agreement on the part of the carrier. Harman violated SCR 20:1.15(b), by failing to provide prompt notice to the subrogated carrier that he was holding funds in which it had an interest, and by failing to deliver funds to which it was entitled. Harman violated SCR 20:1.15(d), by holding funds in trust in which he had a partial interest, and thereafter making disbursements prior to an agreed severance of interest in the funds.

    In the second matter, a woman met with Harman concerning a child custody case, and further consulted with Harman about a potential legal malpractice action against an attorney who had earlier represented the woman in a medical malpractice case. Harman obtained the client's medical malpractice case file, which included medical records. While still representing the woman, Harman undertook criminal defense representation of the woman's live-in boyfriend in a case stemming from a domestic altercation in which the woman was the victim. Harman did not have the woman's written consent to his representation of the boyfriend, placing Harman in violation of SCR 20:1.7(b).

    Harman wrote to the prosecution and referred to materials, including medical records, from the woman's earlier medical malpractice case file, which Harman indicated would show that the woman had a history of drug and alcohol dependence, and self-abusive behavior. Harman then forwarded some of the woman's medical records to the prosecution. The woman had not authorized Harman's disclosures, which were done in violation of SCR 20:1.6(a).

    The woman and the boyfriend had another altercation leading to criminal charges against each of them, and Harman again represented the boyfriend. The woman obtained public defender representation. Despite knowledge that both the woman and the boyfriend were subject to no contact provisions in their respective bail bonds, Harman arranged for the two of them to meet in his office to resolve issues between them, and by doing so, Harman knowingly disobeyed an obligation under the rules of a tribunal, thus violating SCR 20:3.4(c).

    The woman later filed a petition seeking a temporary injunction and restraining order against the boyfriend. Harman appeared at a hearing on the petition, during which Harman cross-examined the woman, making use of information obtained from his prior representation of the woman, in violation of SCR 20:1.9(b). Harman again violated SCR 20:1.9(b) when he made a further unauthorized disclosure of certain of the woman's medical records to the district attorney's office, the clerk of court, the public defender's office, the guardian ad litem in the woman's custody case, and a women's shelter. Harman acknowledged that he released the records for the specific purpose of undermining the woman's credibility and to keep her from continuing to make what he viewed as false claims against the boyfriend.

    Harman was publicly reprimanded for misconduct by the court in 1987. Harman consented to imposition of a public reprimand for misconduct by the Board of Attorneys Professional Responsibility (BAPR) in 1989. The court again publicly reprimanded Harman in 1998.


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