Wisconsin Lawyer
Vol. 85, No. 5, May 2012
Disciplinary proceeding against Donald Hahnfeld
On March 1, 2012, the Wisconsin Supreme Court suspended the law license of Donald Hahnfeld, West Allis, for one year, effective April 2, 2012. In addition, the court ordered that Hahnfeld pay the cost of the disciplinary proceeding and make restitution of $6,000 to the Wisconsin Lawyers' Fund for Client Protection. Disciplinary Proceedings Against Hahnfeld, 2012 WI 17.
The suspension was based on nine counts of misconduct arising out of Hahnfeld's representation of a client in a postjudgment paternity matter. Hahnfeld was the subject of a pending disciplinary proceeding when he commenced his representation of the client in July 2007. On Oct. 4, 2007, the supreme court issued its decision in that proceeding and ordered Hahnfeld to serve a 60-day disciplinary suspension, effective Nov. 8, 2007. Disciplinary Proceedings Against Hahnfeld, 2007 WI 123, 305 Wis. 2d 48, 739 N.W.2d 280.
In the instant case, Hahnfeld had accepted payment of $6,000 from his client on Oct. 3, 2007. $5,000 was designated as fees and the remaining $1,000 was to be used for costs. Hahnfeld did not deposit any of the funds into his trust account as required by SCR 20:1.15(b)(4) or provide the client with all the notices required under SCR 20:1.15(b)(4m) to allow for deposit of the advanced fee into a non-trust account, including notice of Hahnfeld's duty to refund any unearned fees and provide an accounting upon termination of the representation.
After learning of the court's suspension order issued the day after he had accepted funds from the client, Hahnfeld did not expressly inform the client of his impending suspension or how it might affect his continued representation of her. Hahnfeld continued to communicate with the client until the effective date of his suspension. On Nov. 9, 2007, the day after his suspension took effect, Hahnfeld suggested in an email to his client that he would be obtaining a January 2008 court date. No motion had been filed with the court at that point, however, and Hahnfeld's suspension from the practice of law prohibited him from filing a motion to obtain a hearing date. The earliest Hahnfeld could have been reinstated was Jan. 7, 2008. He was not in fact reinstated until Feb. 12, 2008.
In the affidavit Hahnfeld filed with the Office of Lawyer Regulation (OLR) on Nov. 30, 2007, to comply with SCR 22.26(1)(e), Hahnfeld falsely attested that he had only one open probate file and that he retained no client funds in trust. Hahnfeld's false statements violated SCR 20:8.4(c), which provides that it is misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Hahnfeld also did not list the client in the postjudgment paternity matter as a pending client in his affidavit as required under SCR 22.26(1)(e)(iii) nor did he send the client the certified-mail notice of his suspension required by SCR 22.26(1)(a).
Hahnfeld and the client continued to communicate via email in December 2007 and January 2008. Hahnfeld suggested bringing in other counsel to assist with the case but did not tell the client about his suspension. His continued representation of the client constituted the practice of law while suspended, in violation of SCR 22.26(2). On Jan. 24, 2008, the client learned from a third party that Hahnfeld was suspended, immediately terminated the representation, and requested a refund. Hahnfeld did not refund the client's money, contrary to his obligation under SCR 20:1.16(d), and the client therefore sought reimbursement from the Wisconsin Lawyers' Fund for Client Protection, which approved her $6,000 claim.
In the course of the OLR's investigation of the client's grievance, Hahnfeld failed to cooperate by not providing timely responses to the OLR's requests for information and made a misrepresentation in a disclosure to the OLR by stating that he had fully informed the client of his suspension and had arranged for other counsel to handle the client's case. Hahnfeld's conduct in the OLR investigation violated SCR 22.03(6), which is enforced via SCR 20:8.4(h).
Hahnfeld had been disciplined on three prior occasions: a 1993 public reprimand, a 2003 public reprimand, and a 2007 60-day suspension.
Disciplinary proceeding against Warren L. Brandt
On Feb. 9, 2012, the supreme court suspended the law license of Warren L. Brandt, St. Croix Falls, for four months, effective March 12, 2012. The court approved a stipulation in which Brandt agreed to the four-month suspension, as well as the following conditions: participation in an alcohol assessment conducted by a person of the OLR's choosing with the costs for the assessment to be paid by Brandt; compliance with all treatment recommendations; provision of properly executed medical authorizations as requested by the OLR; and cooperative participation in a monitoring program approved by the OLR. Pursuant to poststipulation filings, the court also ordered Brandt to refrain from the consumption of alcohol and any mood-altering drugs without a valid prescription while subject to the treatment recommendations of the assessor, subject to the monitoring program, or on probation, whichever period is longest. Disciplinary Proceedings Against Brandt, 2012 WI 8.
Brandt's misconduct related to a felony drunk-driving conviction in Minnesota stemming from a Jan. 26, 2010, incident. On Sept. 3, 2010, the Minnesota court sentenced Brandt to 36 months' commitment, stayed, and seven years' probation with conditions of 180 days in jail, work release, a $900 fine plus costs, and conditions relating to treatment and counseling.
By engaging in conduct resulting in his felony conviction in Minnesota of first-degree driving while intoxicated within 10 years of three or more qualified, prior impaired-driving incidents, Brandt committed a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b).
Brandt's prior discipline included a 1994 private reprimand, a 2003 public reprimand, a 2004 private reprimand, and a 2009 public reprimand.
Disciplinary proceeding against Katherine L. Taber
On Feb. 9, 2012, the supreme court suspended the Wisconsin law license of Katharine L. Taber, Snowflake, Arizona, for one year as discipline reciprocal to a June 15, 2011, Supreme Court of Arizona order suspending Taber from the practice of law for one year. Disciplinary Proceedings Against Taber, 2012 WI 9.
The Arizona one-year suspension order arose out of Taber's misconduct in violation of the following Arizona Rules of Professional Conduct (ARPC) – 1.3(a), 3.2, 3.3, 3.4(c), 5.5, and 8.4(a) and (d) – and of former Arizona Supreme Court Rule 53(c). Taber, who had practiced under the name of Katherine L. Roberts, had delayed divorce hearings, failed to explain absences from court to her client or the judge, and failed to pay resulting sanctions judgments. She also failed to timely file an appellate brief or request extensions in another case. In that case, she also failed to appear at an order-to-show-cause hearing and offered or failed to correct false information given to the appellate court. In a third case, when a court held her in contempt for failing to properly notify it that she could not appear at a trial, she failed to timely pay the fine imposed. Taber also practiced law in Arizona after her Arizona law license was administratively suspended for nonpayment of dues.
Taber had no prior Wisconsin discipline.
Disciplinary proceeding against Tracy R. Eichhorn-Hicks
On March 1, 2012, the supreme court suspended the Wisconsin law license of Tracy R. Eichhorn-Hicks, Minneapolis, for one year as discipline reciprocal to an Aug. 21, 2000, Supreme Court of Minnesota order suspending Eichhorn-Hicks' Minnesota law license for one year. The Wisconsin Supreme Court also publicly reprimanded Eichhorn-Hicks as discipline reciprocal to a June 23, 2009, Minnesota public reprimand. Disciplinary Proceedings Against Eichhorn-Hicks, 2012 WI 18.
The Minnesota one-year suspension arose out of Eichhorn-Hicks' misconduct in violation of Minnesota Rules of Professional Conduct (MRPC) rules 1.15(a), (c), (h), and (i), 8.1(a)(1), and 8.4(c) and (d), and Lawyers Professional Responsibility Board Opinions Nos. 9 and 15. Eichhorn-Hicks had misused his trust account, failed to maintain proper trust account records, misappropriated funds, falsely certified his attorney registration statements, and made false statements to the director of Minnesota's Office of Lawyers Professional Responsibility. He did not report this suspension to the Wisconsin OLR.
The Minnesota public reprimand resulted from Eichhorn-Hicks' violations of MRPC rules 1.5(b), 1.15(c)(5), and 8.1(b). Eichhorn-Hicks received advanced fee payments on two occasions without a written fee contract signed by a client, failed to deposit those funds into his trust account, and failed to disclose to the director of Minnesota's Office of Lawyers Professional Responsibility during an investigation the full amount of fees received from a client. He also did not report this reprimand to the Wisconsin OLR.
Eichhorn-Hicks had no prior Wisconsin discipline.
Public reprimand of Gary R. McCartan
The OLR and Gary R. McCartan, Wausau, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme-court appointed referee approved the agreement and issued the public reprimand on Feb. 27, 2012, in accordance with SCR 22.09(3).
A man hired McCartan for legal representation after a fire destroyed the man's business property. The client advanced to McCartan more than $1,000 in connection with the representation.
McCartan violated SCR 20:1.5(b)(1) and (2) by failing to adequately communicate to the client the scope of the representation and the basis or rate of the fee and expenses for which the client would be responsible and by failing to provide the client with a written fee agreement when he knew the cost of the representation to the client would exceed $1,000.
By failing to deposit multiple advanced-fee payments received from the client into his trust account and failing to comply with the alternative fee-placement provisions of SCR 20:1.15(b)(4m) and without apparent intention to make use of those provisions, McCartan violated SCR 20:1.15(b)(4).
McCartan failed to commence a lawsuit against the client's insurance carrier or its agents, or to otherwise timely advance the client's interests in claims the client had against the insurer, in violation of SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client. After successfully moving to vacate a small-claims default judgment that a party had obtained against the client's company, McCartan again violated SCR 20:1.3 by failing to file an answer within the specified time period, causing a second default judgment against the client's company.
With respect to the small-claims case, McCartan failed to properly consult with the client about whether to file an answer and counterclaim, failed to explain the matter to the extent necessary for the client to make an informed decision, and failed to provide information necessary to keep the client informed regarding case status, in violation of SCR 20:1.4(a)(2) and (3) and SCR 20:1.4(b).
SCR 20:1.5(a) requires an attorney fee in a matter to be reasonable. The client and McCartan eventually agreed on contingent-fee terms regarding claims stemming from the fire loss. McCartan violated SCR 20:1.5(a) when he charged his contingent-fee percentage against a payment received from the insurer, even though the insurer's check was dated the day after the contingent-fee agreement was executed and there was no evidence that McCartan performed any work toward obtaining the payment. McCartan further violated SCR 20:1.5(a) when he charged the client more than $1,200 to reopen the small-claims matter, which was of no benefit to the client because McCartan thereafter took no action and allowed the default judgment to be reentered. McCartan also violated SCR 20:1.5(a) with respect to charges for certain activities in the matter of fire-loss claims, when the services did not benefit the client or advance his interests.
McCartan violated SCR 20:1.5(c) by failing to provide the client with a written settlement statement upon receipt of a contingent fee.
McCartan violated SCR 20:1.16(d) by failing to refund the unearned portion of fees paid to him by the client.
Imposition of the consent public reprimand was conditioned on McCartan's payment to the client of a restitution amount agreed to by the OLR and McCartan.
McCartan's prior discipline consists of a private reprimand imposed in 1990 for failing to act with reasonable diligence in a matter and failing to keep the client in that matter informed about the status of a case.
Disciplinary proceeding against Mark Milos
On Feb. 3, 2012, the supreme court suspended the law license of Mark Milos, Kenosha, for 90 days, effective April 3, 2012. Disciplinary Proceedings Against Milos, 2012 WI 6.
Milos, who is admitted to practice law in both Illinois and Wisconsin, obtained a Wisconsin real estate broker‘s license in 2008. In 2009, Milos used the real estate broker's license to enter a condominium in Kenosha owned by a client's opponent in litigation taking place in Illinois, and he obtained evidence that he later used in that litigation matter. Milos also made false statements to a police officer investigating Milos' entry into the condominium.
On May 26, 2010, the Illinois Attorney Registration and Disciplinary Commission (the Illinois commission) filed a complaint against Milos, alleging two counts of misconduct. Count I alleged that Milos made a statement of material fact to a tribunal that he knew or reasonably should know is false, in violation of rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (IRPC); used methods of obtaining evidence that violate the legal rights of a third person, in violation of IRPC 4.4; and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of IRPC 8.4 (a)(4); conduct that is prejudicial to the administration of justice, in violation of IRPC 8.4(a)(5); and conduct that tends to bring the courts or the legal profession into disrepute, in violation of Illinois Supreme Court Rule 770.
Count II alleged that Milos made statements of material fact to a third person that he knew or reasonably should know are false, in violation of IRPC 4.1(a), and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of IRPC 8.4 (a)(4); conduct that is prejudicial to the administration of justice, in violation of IRPC 8.4(a)(5); and conduct that tends to bring the courts or the legal profession into disrepute, in violation of Illinois Supreme Court Rule 770.
Milos joined a petition filed by the Illinois commission in the Illinois Supreme Court to impose discipline by consent. On Sept. 26, 2011, the Illinois Supreme Court accepted the petition and suspended Milos' license to practice law in Illinois for 90 days, effective Oct. 17, 2011. The Illinois Supreme Court also directed Milos to complete the Illinois commission's professionalism seminar within one year and to reimburse the Client Protection Program Trust Fund for any client protection payments arising from his conduct.
On Dec. 27, 2011, Milos and the OLR filed a stipulation with the Wisconsin Supreme Court in which Milos agreed with the facts alleged and agreed that he is subject to reciprocal discipline in Wisconsin pursuant to SCR 22.22. Accordingly, the supreme court imposed a 90-day suspension and ordered Milos to comply with the terms and conditions set forth in the Illinois Supreme Court's order and judgment.
Public reprimand of Gregory J. Rogaczewski
The OLR and Gregory J. Rogaczewski, Milwaukee, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee approved the agreement and issued the reprimand on March 9, 2012, in accordance with SCR 22.09(3).
Rogaczewski graduated from law school in 1974 and practices probate, guardianship, bankruptcy, and family law. In 2009, he received a private reprimand.
In 2007, friends of a deceased individual were referred to Rogaczewski, who received from them the decedent's property, including documents, personal effects, and $7,015.36 in cash. Rogaczewski did not file a probate proceeding at that time. Several months later, he requested assistance from a genealogical company to identify living relatives. After receiving contact information for two relatives, he did not immediately contact either of the relatives.
Several months later, one of the relatives learned of the death and contacted Rogaczewski, who said that he had the decedent's property. Rogaczewski informed the relative he would do what needed to be done to transfer the property. The relative considered Rogaczewski to be her lawyer. Subsequently, the relative sought information from Rogaczewski without success.
Eventually, a grievance was filed against Rogaczewski. In 2011, during the investigation, Rogaczewski filed a petition for special administration. He informed the district committee investigator that he would not charge a fee for handling the estate.
By receiving the decedent's property and thereafter failing to file for administration of the estate for four years, Rogaczewski violated SCR 20:1.3, which states, "A lawyer shall act with reasonable diligence and promptness in representing a client."
By failing to provide the client with information regarding the processing of the estate and by failing to respond to requests for information, Rogaczewski violated SCR 20:1.4(a)(3), which states, "A lawyer shall: (3) keep the client reasonably informed about the status of the matter," and SCR 20:1.4(a)(4), which states, "A lawyer shall (4) promptly comply with reasonable requests by the client for information."
By receiving property of the estate but not notifying any relatives of its existence until one relative had contacted him on her own initiative, Rogaczewski violated SCR 20:1.15(d)(1), which states, "Upon receiving funds or other property in which a client has an interest, or in which the lawyer has received notice that a 3rd party has an interest identified by a lien, court order, judgment, or contract, the lawyer shall promptly notify the client or 3rd party in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, the lawyer shall promptly deliver to the client or 3rd party any funds or other property that the client or 3rd party is entitled to receive."
As a condition to this reprimand, Rogaczewski agreed to complete the processing of the estate without receiving a fee.
Hearing to reinstate Boris V. Ouchakof
A public hearing will be held on Monday, July 9, 2012, at 9:30 a.m., before referee Lisa Claire Goldman at the State Bar Center, 5302 Eastpark Blvd., Madison, on the petition of Boris V. Ouchakof, Madison, to reinstate his Wisconsin law license. Any interested person may appear at the hearing and be heard in support of, or in opposition to, the petition for reinstatement.
On Nov. 15, 2002, the Wisconsin Supreme Court granted Ouchakof's petition for consensual revocation and revoked Ouchakof's Wisconsin law license. Disciplinary Proceedings Against Ouchakof, 2002 WI 122, 257 Wis. 2d 1, 653 N.W.2d 108. The revocation was based, in part, on the OLR's disciplinary complaint alleging misconduct consisting of Ouchakof secretly charging and accepting fees without disclosing or submitting those fees to his law firm as his employment contract required; failing to diligently represent and communicate with clients, several who had retained him to assist in immigration matters; practicing law after his law license was suspended; and failing to cooperate with the OLR's investigation. Ouchakof acknowledged that he could not successfully defend against the misconduct allegations in the OLR's complaint or against allegations of misconduct in an uncharged grievance matter.
To be reinstated, Ouchakof must prove that 1) he has the moral character to practice law in Wisconsin, 2) his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, 3) all his representations in his reinstatement petition are substantiated, and 4) he has complied fully with the terms of the revocation order and with supreme court rules.
Relevant information can be provided to or obtained from OLR assistant litigation counsel Julie M. Spoke, 110 E. Main St., Ste. 315, Madison, WI 53703, or (608) 267-2024.
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