Wisconsin Lawyer
Vol. 84, No. 5, May 2011
Assisting Another in Making Misleading Communications Concerning a Lawyer’s Services; Making Misleading Communications Concerning a Lawyer’s Services
Violations of SCR 20:8.4(a), 20:7.5(a), and 20:7.1(a)
An attorney (the former shareholder) who had retired from the practice of law in the late 1990s and whose law license was suspended in 2008 for his noncompliance with continuing legal education (CLE) requirements is the sole owner of a debt-collection agency. When conducting business for his debt-collection agency, he used the letterhead of his former law firm, at which he had been a shareholder, although the letterhead contained his debt-collection agency’s address. The letterhead listed the law firm’s three namesake attorneys. Of the three attorneys listed, only one (the current shareholder) continues to hold a law license and remains at the firm.
The current shareholder indicated that he allowed the former shareholder to use the firm’s letterhead but stressed he did not authorize the former shareholder to represent himself as an attorney. The current shareholder stated the agreement to allow the former shareholder to use the letterhead stemmed from negotiations surrounding the firm’s buyout of the former shareholder’s interest in the firm. The current shareholder further explained that it was his understanding that the former shareholder’s use of the letterhead stemmed from the former shareholder’s desire to avoid potentially violating rules governing an attorney’s employment by a nonattorney, such as a collection agency. It is unknown what rules the current shareholder was referring to in providing this explanation.
The current shareholder further explained that the agreement was that the former shareholder could use the letterhead as long as the former shareholder had malpractice insurance, was licensed to practice law, and restricted his practice to representation of his debt-collection agency. The current shareholder stated that the former shareholder’s permission to use the letterhead was revoked in March 2009.
The current shareholder disclosed that the former shareholder had been listed on the law firm’s letterhead as “of counsel.”
After the former shareholder’s departure from the law firm, while the former shareholder had either no status or “of counsel” status with the firm and including a period of license suspension, the current shareholder violated SCR 20:8.4(a) by allowing the former shareholder to use the firm’s letterhead in correspondence on behalf of the former shareholder’s debt-collection agency, when that letterhead indicated no limitation on the former shareholder’s affiliation with the firm and instead indicated a continuing and full affiliation. The current shareholder assisted the former shareholder in violating or induced him to violate SCR 20:7.5(a) and SCR 20:7.1(a).
By continuing to list the former shareholder as “of counsel” on the firm’s letterhead from the time of the former shareholder’s suspension in May 2008 until the former shareholder was removed from the letterhead in March 2009, the current shareholder violated SCR 20:7.5(a) and SCR 20:7.1(a).
Criminal Conduct; Failure to Report Criminal Conviction
Violations of SCR 20:8.4(b) and 21.15(5)
According to a criminal complaint, police and paramedics were dispatched to respond to a report of a man who had fallen in his driveway. A witness described seeing a car hit a mailbox in the neighborhood. The car was parked in the attorney’s driveway and had front-end damage. The witness approached the attorney’s companion, who was standing in the driveway. When the attorney got out of the car to ask the witness what the problem was, the attorney began walking down his driveway and then fell. The police officers, believing the attorney to be under the influence of an intoxicant, followed the ambulance to the hospital. The attorney became belligerent in the ambulance. After arriving at the hospital, and while the attorney was restrained on a long board, police conducted the field-sobriety tests possible in those circumstances. A chemical test of the attorney’s blood indicated .282 grams of alcohol per 100 milliliters. After being read his rights, the attorney informed the police officer approximately 10 times that he was a lawyer. He stated that he had consumed four or five beers and had been operating a motor vehicle when he struck the mailbox.
The attorney pleaded guilty to, and was convicted of, operating while intoxicated (second offense). A charge of operating with a prohibited alcohol concentration (second offense) was dismissed. The attorney was fined, ordered to undergo an alcohol assessment, and sentenced to 90 days in jail with Huber privileges, and his driver’s license was revoked for 18 months. By engaging in conduct leading to a conviction, the attorney violated SCR 20:8.4(b).
The attorney failed to report his conviction to the OLR and the clerk of the supreme court. By failing to report the conviction, the attorney violated SCR 21.15(5).
Lack of Diligence
Violation of SCR 20:1.3
A client hired an attorney to represent her in appealing the termination of her Social Security disability benefits. The Social Security Administration had previously required the client to undergo medical reexaminations and based on those assessments, as well as hospital and clinical reports, had concluded that the client’s health had improved sufficiently for her to work. The attorney obtained from the client’s treating physician a short letter concerning the client’s continued disability and prognosis, which the attorney provided to the hearing examiner.
The disability hearing was set and then rescheduled at the attorney’s request, to accommodate his schedule. Although the attorney was given both written and telephone notice of the rescheduled hearing, the attorney failed to appear. The client was present at the hearing. She tried several times to reach the attorney by telephone but neither she nor the attorney’s office was able to locate him. The client then requested that the hearing be rescheduled. The hearing examiner denied the request because the hearing had already been postponed once at the attorney’s request, and because the hearing examiner had no communication from the attorney that would justify a postponement. The client chose to forego giving testimony in the absence of her attorney.
The hearing examiner therefore entered his decision based only on a review of the evidence in the record. The decision confirmed the original conclusion that the client’s health had improved and she was no longer entitled to benefits. The only explanation of the attorney’s failure to appear was a subsequent letter from the attorney’s assistant to the hearing examiner apologizing for the “recent mix up” and “unintentional oversight on our part.” The attorney requested a hearing before an administrative law judge and sought an additional report from another health-care provider identified by the client. The client obtained other counsel and discharged the attorney.
By failing to appear at the rescheduled disability hearing, despite having both oral and written notice of the time, date, and place, the attorney violated SCR 20.1.3, which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
Disobeying Obligation under Rules of Tribunal; Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation in a Disclosure
Violations of SCR 20:3.4(c), 20:8.4(c), and 22.03(6)
An attorney filed a small-claims complaint against a woman and her husband on behalf of the client, a hospital, alleging that the defendants owed the hospital for an unpaid bill. Around the time the complaint was filed the defendants sent a check to the hospital for the amount owed, but the check was not deposited in the hospital’s account until after the complaint was served.
Subsequently, the attorney was granted a default judgment in favor of the plaintiff “in the amount of All Costs with immediate entry of Judgment.” In the county in which the judgment was granted, the actual amounts for costs are not determined on the return date but are later entered by the judgment clerk.
Before entry of the notice of entry of judgment (the judgment notice), the attorney filed an earnings garnishment notice to commence a garnishment action. The garnishment notice said the unpaid amount of the judgment for costs was $349.50.
A few days later, the court entered the judgment notice, which listed the amount of the judgment as $0.00, attorney fees of $50, service fees of $110, and a filing fee of $89.50, for a total judgment amount of $249.50.
Pursuant to the garnishment, the employer of one defendant deducted from the defendant’s next paycheck $349.50 for the judgment costs, rather than the $249.50 indicated on the judgment notice.
In response to the grievance, the attorney claimed that the $100 difference occurred because she believed that, statutorily, she was due $100 more for attorney fees than the judgment notice indicated. The attorney said she filed the garnishment notice before the judgment notice was entered and later missed the discrepancy between the attorney fees claimed and collected in the garnishment and the amount awarded on the judgment notice. The attorney told the OLR that the clerk of court “erroneously” entered the wrong amount for attorney fees and that she was “working with the clerk to amend the judgment notice.” The attorney did not mention that a few days before she mailed her response to the OLR, the court had denied her motion to amend the judgment notice to award $100 more in attorney fees.
After denial of her motion to amend the judgment amount, the attorney did not refund $100 to the defendant. Instead, the attorney’s office filed a motion for reconsideration, which the court denied without a hearing more than seven months later. The attorney did not refund $100 to the defendant until several months after the reconsideration motion was filed.
By claiming and receiving from a debtor, through an earnings garnishment, $100 more for attorney fees than the judgment entitled her to, and by failing for several months to refund $100 to the debtor, even after receiving notice from the OLR of the discrepancy, and even after the court denied her request to amend the judgment amount, the attorney violated SCR 20:3.4(c), which states that an attorney shall not knowingly disobey an obligation under the rules of a tribunal, and SCR 20:8.4(c), which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
By stating in her initial response to the OLR that the clerk of court “erroneously” awarded attorney fees of $50 and that she was “working with the clerk to amend the judgment notice to award attorneys fees pursuant to the Wisconsin Statutes,” when she knew the court had denied her motion to amend the judgment amount, the attorney made a misrepresentation in a disclosure to the OLR, in violation of SCR 22.03(6).
Incompetence; Lack of Diligence in Real Property Dispute
Violations of SCR 20:1.1 and 20:1.3
An attorney represented a client in a boundary dispute with the client’s neighbor. During the representation, the attorney pursued an adverse-possession claim on the client’s behalf. In violation of SCR 20:1.1, which requires competent representation, the attorney failed to specifically ascertain and describe the property titled to the neighbor to which the client was asserting an adverse-possession claim; supported the adverse-possession claim with what the court of appeals described as an asserted mutual-boundary agreement, as opposed to any facts necessary to an adverse-possession claim; and filed a lis pendens against the client’s own land, as opposed to that of the neighbor. In violation of SCR 20:1.3, which requires diligent representation, the attorney failed to oppose a summary judgment motion with timely affidavits.
The attorney had no prior discipline.
Commit Criminal Act that Reflects Adversely on Lawyer’s Honesty, Trustworthiness, or Fitness as a Lawyer
Violation of SCR 20:8.4(b)
In March 2010, an attorney pleaded no contest to the misdemeanor offense of violating an injunction, contrary to Wis. Stat. section 813.125(7). In July 2010, the court sentenced the attorney to 90 days in jail with 90 days’ credit for time served; community service, already served; and a $350 fine. The misdemeanor conviction was based on the attorney’s conduct in making a telephone call to his former wife at a time not authorized by the terms of the injunction.
By engaging in conduct leading to a misdemeanor conviction for violation of an injunction, 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 a prior private reprimand for similar misconduct.
Conflict of Interest – Sexual Relationship with Current Client
Violation of SCR 20:1.8(j)
A woman hired a male attorney to represent her in a divorce. The woman’s husband was unrepresented. The parties signed a marital settlement in July 2009. The final hearing was held in August 2009. The woman’s attorney continued to prepare documents pertaining to the divorce until November 2009.
The attorney had sexual relations with the client on one occasion before the final hearing. The attorney and the client resumed their sexual relationship after the final hearing, and he continued to act as her attorney. The attorney did not have a sexual relationship with the woman when the client-lawyer relationship commenced.
By engaging in sexual relations with a current client, when no consensual sexual relationship existed when the client-lawyer relationship commenced, the attorney violated SCR 20:1.8(j). The attorney had no prior discipline.
Criminal Act (Battery and Resisting) Reflecting Adversely on Lawyer’s Fitness to Practice
Violation of SCR 20:8.4(b)
In 2007, an attorney attempted to bring a butane cigar lighter through security at O’Hare International Airport. After the attorney entered an airport security area, Transportation Security Administration (TSA) officials informed the attorney that he could not bring the lighter onto the plane.
After the attorney relinquished the lighter and while he attempted to leave the security area, a detective approached the attorney from behind and touched the attorney or his carry-on luggage. The attorney responded by turning to his right while simultaneously swinging his right arm at the detective. The detective, with the assistance of numerous TSA officials, forced the attorney to the ground. The attorney was then arrested. The detective suffered injuries to his head while subduing the attorney.
In 2009, the attorney entered a guilty plea to misdemeanor charges of battery and resisting or obstructing a police officer. By engaging in conduct leading to a conviction on misdemeanor counts of battery and resisting or obstructing a police officer, 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.
Failure to Comply with CLE Requirements; Failure to Pay Bar Dues; Practicing Law while Suspended; Failure to Comply with Trust-Account-Certification Requirements
Violations of SCR 31.10, 10.03(6), 22.26(2), 20:1.15(i)(1) and (i)(4), and 20:8.4(f)
An attorney entered into an agreement for imposition of a private reprimand. A supreme court-appointed referee thereafter approved the agreement, and issued the private reprimand on Feb. 23, 2011, in accordance with SCR 22.09(3). The private reprimand stemmed from two matters investigated by the OLR.
In the first matter, the BBE suspended the attorney’s law license pursuant to SCR 31.10 for noncompliance with mandatory CLE requirements for the 2006-07 reporting year. However, the lawyer sent correspondence, entered an appearance in a case, and filed a motion and an appeal in another matter, all while his law license was administratively suspended.
By engaging in the practice of law or otherwise acting in a manner purporting that he was authorized or qualified to practice law during the period while his law license was suspended for failure to comply with CLE requirements, the attorney violated SCR 31.10, which states, “A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule,” and SCR 22.26(2), which states, “An attorney whose license to practice law is suspended or revoked ... may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel.” SCR 31.10 and SCR 22.26(2) are enforceable through SCR 20:8.4(f), which states, “It is professional misconduct for a lawyer to: ... (f) violate a ... supreme court rule ... regulating the conduct of lawyers.”
In the second matter, the State Bar of Wisconsin suspended the attorney’s membership on Oct. 30, 2009, for failure to pay fiscal-year 2010 (July 1, 2009 – June 30, 2010) State Bar dues and supreme court assessments and failure to comply with trust-account-certification requirements. The State Bar reinstated the attorney’s membership on Nov. 12, 2009.
From Oct. 30, 2009, to Nov. 12, 2009, the attorney entered appearances, filed pleadings, corresponded with opposing counsel, and advised clients in multiple matters although his law license was administratively suspended.
By engaging in the practice of law or otherwise acting in a manner purporting that he was authorized or qualified to practice law while his State Bar membership was suspended for failure to pay State Bar dues and supreme court assessments and failure to comply with trust-account-certification requirements, the attorney violated SCR 10.03(6), which states, in relevant part, “If the annual dues or assessments of any member remain unpaid 120 days after the payment is due, the membership of the member may be suspended in the manner provided in the bylaws; and no person whose membership is so suspended for nonpayment of dues or assessments may practice law during the period of suspension,” and SCR 22.26(2), which states, “An attorney whose license to practice law is suspended or revoked ... may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel.” SCR 10.03(6) and 22.26(2) are enforceable through SCR 20:8.4(f), which states, “It is professional misconduct for a lawyer to: ... (f) violate a ... supreme court rule ... regulating the conduct of lawyers.”
In addition, by failing to comply with the trust-account-certification requirements, the attorney violated SCR 20:1.15(i)(1) and 20:1.15(i)(4).
SCR 20:1.15(i)(1) provides, “A member of the state bar of Wisconsin shall file with the state bar of Wisconsin annually, with payment of the member’s state bar dues or upon any other date approved by the supreme court, a certificate stating whether the member is engaged in the practice of law. If the member is practicing law, the member shall state the account number of any trust account, and the name of each financial institution in which the member maintains the trust account.” SCR 20:1.15(i)(4) provides, “The failure of a state bar member to file the certificate is grounds for automatic suspension of the member’s membership in the state bar in the same manner provided in SCR 10.03(6) for nonpayment of dues.” SCR 20:1.15(i)(1) and 20:1.15(i)(4) are enforceable through SCR 20:8.4(f), which states, “It is professional misconduct for a lawyer to: ... (f) violate a ... supreme court rule ... regulating the conduct of lawyers.”
The attorney had one prior private reprimand.
Lack of Diligence; Failure to Communicate; Failure to Surrender Papers and Property
Violations of SCR 20:1.3, 20:1.4(a)(3) and (a)(4), and 20:1.16(d)
An attorney entered into an agreement for imposition of a private reprimand. A supreme court-appointed referee thereafter approved the agreement, and issued the private reprimand on March 19, 2011, in accordance with SCR 22.09(3).
In June 2008, the attorney agreed to represent a client in a small-claims action seeking to recover property allegedly stolen from the client’s deceased father’s apartment. The attorney accepted a flat fee of $400 for the representation, with the understanding that if the case proceeded to trial, additional fees would be required.
The next month, the attorney filed two small-claims actions against the apartment-complex property management company and other individuals who allegedly participated in the theft. However, the attorney failed to ensure that his client had capacity to sue on behalf of her father’s estate. The court dismissed the actions without prejudice in August 2008. The attorney thereafter assisted his client in filing the necessary probate documents appointing her as a special administrator on behalf of her father’s estate with the authority to sue on behalf of the estate.
In September 2008, the attorney wrote to the client and advised her that he intended to refile the cases, and that the original flat fee of $400 would be held in escrow for the refiling of the new cases. However, the attorney did not file the new cases in 2008, and in February 2009 he advised the client that he would require additional money to file the cases. According to the attorney, he earned the original $400 fee for his prior work on the small-claims matters, including his assistance in helping the client become special administrator for her father’s estate. The attorney offered to continue with the representation with a $400 credit.
Although the client did not agree to the new proposed fee arrangement, she understood that the attorney would nonetheless complete the original litigation. According to the client, she attempted to contact the attorney repeatedly from March 2009 until September 2009 seeking to find out the status of her claim, without success. The attorney, while claiming he corresponded with the client and tried to reach her by telephone, could not document any attempt on his part to communicate with the client. Moreover, the attorney had not refiled the small-claims actions nor taken any further steps to advance the client’s interests.
In September 2009, the client wrote to the attorney and requested that he return her files and the money she had paid for the fee. The attorney did not promptly refund the fee or return the client’s files.
By failing to complete the original small-claims litigation in a timely manner or otherwise take steps to advance the client’s interests, the attorney failed to act with reasonable diligence and promptness on behalf of the client, in violation of SCR 20:1.3, which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
By failing to respond to the client’s multiple requests for information regarding the status of the small-claims litigation or to otherwise apprise the client of case status, the attorney violated SCR 20:1.4(a)(3) and (a)(4), which state, in relevant part, “A lawyer shall: ... (3) Keep the client reasonably informed about the status of a matter; (4) Promptly comply with reasonable requests by the client for information.”
By failing to surrender papers and property to which the client was entitled, the attorney violated SCR 20:1.16(d), which provides, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as ... surrendering papers and property to which the client is entitled.”
The attorney had no disciplinary history.
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