Private Discipline
The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, 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 summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems.
Lack of Competence, Diligence, and Failure to Prepare a Written Fee Agreement
Violations of SCR 20:1.1, SCR 20:1.3, and SCR 20:1.5(b)
A lawyer was retained to file an I-130 immigration petition naming the client’s child as the client’s sponsor. The lawyer charged a fee of $3,100 but did not prepare a written fee agreement. By accepting a fee in excess of $1,000 and failing to prepare a written fee agreement, the lawyer violated SCR 20:1.5(b), which requires that the scope of the representation and the basis and rate of the fee be communicated to the client in writing.
The lawyer prepared and filed the I-130 petition requesting an interview at the local U.S. Citizenship and Immigration Services (USCIS) office. However, the petition was unexpectedly forwarded to the National Visa Center as though the client would return to her country of origin for her interview. The referral to the National Visa Center also subjected the petition to dismissal if no action was taken within two years. Petitions referred to the local USCIS office do not have the same deadline as petitions referred to the National Visa Center.
The lawyer was sent two email contacts by the National Visa Center over the following two years but failed to respond. The lawyer’s failure to respond, and failure to recognize the client became subject to the two-year deadline, caused the petition to be terminated. By failing to respond to the National Visa Center’s emails, the lawyer violated SCR 20:1.1, which requires a lawyer to provide competent representation. By failing to actively monitor the status of the I-130 petition, the lawyer violated SCR 20:1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client.
Failure to Communicate to Client, in Writing, Terms and Scope of Representation and Purpose and Effect of Advanced Fees; Failure to Place Advanced Fees in Trust Until Earned; Failure to Respond to Requests for Information Concerning Fees; Failure to Provide Accounting or Written Notices Required by Advanced Fee Alternative; Failure to Communicate; Failure to Consult with Client; Conflict of Interest
Violations of SCR 20:1.4(a)(2) and (3); SCR 20:1.5(b)(1), (2), and (3), (f), (g)(1) and (2); and SCR 20:1.7(b)(4)
A lawyer committed 11 counts of professional misconduct in three client matters. In the first matter, the lawyer failed to provide a written communication to the client defining the terms and scope of the representation and the purpose and effect of an advanced fee, failed to place the advanced fee in a trust account until earned, and failed to respond to the client’s request for an accounting of the fees.
In the second matter, the lawyer failed to communicate to the client, in writing, the scope of the representation and the basis or rate of the flat fee; and failed, upon termination of the representation, to communicate to the client, in writing, notice of the availability of disputing the bill and submitting it to arbitration.
In the third matter, the lawyer failed to clearly define how fee payments would be applied to the client’s matters; failed to clearly define how outstanding fee balances would be included in subsequent fee agreements; placed advanced fees into a business account without providing required notices and a final accounting; briefly failed to communicate with the client regarding the status of the matter; and failed to inform the client of a potential conflict of interest, thereby not giving the client the opportunity to decide whether to continue with the lawyer’s representation.
The lawyer had no prior discipline.
Misconduct; Noncooperation
Violations of SCR 20:8.4(c) and SCR 22.03(6), enforceable via SCR 20:8.4(h)
In 2019, a lawyer employed by a district attorney’s office took over prosecution of two pending cases. Both defendants (defendant and co-actor) were charged with counts involving the same victim.
After negotiations between the lawyer and the defendant’s counsel, the lawyer offered and the defendant accepted a plea agreement, which included the defendant’s cooperation in prosecuting the co-actor. During the defendant’s plea hearing, the agreement was placed on the record. The lawyer agreed that the original complaint and preliminary hearing testimony provided a factual basis for the defendant’s plea. The defendant pleaded guilty and was convicted of a reduced charge.
Between the defendant’s plea and sentencing hearings, the lawyer came to believe that the defendant, not the co-actor, was primarily responsible for the crimes against the victim.
The lawyer misrepresented to counsel that the state failed to comply with Wis. Stat. chapter 950 regarding the victim’s rights and, therefore, the lawyer intended to file a motion to withdraw from the defendant’s plea agreement. Counsel told the lawyer that the state did not have a legal basis to withdraw from the agreement. The lawyer also consulted with the Wisconsin Attorney General’s Office regarding plea withdrawal. Thereafter, the lawyer asserted to counsel that the state could file additional charges against the defendant for conduct referenced in the original complaint and preliminary hearing testimony. The lawyer implied the state might file additional charges unless the defendant stipulated to withdraw the agreement.
The lawyer violated SCR 20:8.4(c) by misrepresenting to counsel that the state failed to comply with Wis. Stat. chapter 950 and by asserting to counsel that the state had grounds to file additional charges against the defendant and implying the state might file additional charges unless the defendant stipulated to withdraw the plea agreement.
The lawyer violated SCR 22.03(6), enforceable via SCR 20:8.4(h), by making misrepresentations to the Office of Lawyer Regulation (OLR) during the OLR’s investigation.
The lawyer had no prior discipline.
Lack of Diligence and Failure to Comply with Court Deadlines
Violations of SCR 20:1.3 and SCR 20:3.4(c)
A lawyer prepared a will for a client, naming the lawyer as personal representative (PR) and the client’s children as beneficiaries. The client died in April 2017. The lawyer filed a petition for special administration in September 2018, a general inventory in May 2019, and an application for informal probate in July 2019. The lawyer closed her law firm at the end of 2019 and started a governmental job without informing the beneficiaries.
In August and September 2020, the court issued notices to close the estate, referencing a July 2020 deadline. The lawyer did not take any action in connection with the notices, reporting that efile notices were automatically directed into her junk email folder at her governmental employer. In December 2020, the court issued an order to show cause (OTSC). At the OTSC hearing in January 2021, the lawyer stated she was prepared to move forward with the estate, which the court required be closed within six months.
The lawyer filed a statement of informal administration in March 2021 but then took no further action regarding the estate. In July and August 2021, the court issued notices to close the estate. The lawyer did not take any action in connection with the notices. In September 2021, the court issued another OTSC. When the lawyer failed to appear for the OTSC hearing, the court removed the lawyer and appointed a new PR.
By failing to take the necessary steps to complete the administration of the client’s estate for more than four years, the lawyer violated SCR 20:1.3. By failing to comply with estate deadlines set forth by the court, the lawyer violated SCR 20:3.4(c).
Lack of Diligence
Violation of SCR 20:1.3
A lawyer represented a client for the client’s revocation hearing. The representation was to include an appeal of the decision by the administrative law judge, if necessary. The client lost the revocation hearing, and the lawyer drafted an appeal. The lawyer sent the draft appeal to the client for the client to review. The client spoke with the lawyer and informed the lawyer he was not satisfied with the appeal. The lawyer revised the appeal and filed it by mail, but it was rejected because it was filed past the deadline.
By filing the appeal after the deadline had passed and not requesting an extension to file, the lawyer violated SCR 20:1.3, which states, “a lawyer shall act with reasonable diligence and promptness in representing a client.”
The lawyer received a private reprimand in 2005.
Committing a Criminal Act that Reflects Adversely on the Lawyer’s Honesty, Trustworthiness, or Fitness as a Lawyer
Violation of SCR 20:8.4(b)
Law enforcement officers were dispatched to a bar regarding a complaint that an individual was in the bar possibly intoxicated and dancing while holding two loaded weapons. The officers arrived to find the lawyer with two loaded firearms and an extra magazine visible on his person and in his possession. The officers attempted to question the lawyer, who refused to take a breath test or answer further questions. The lawyer was taken into custody, eventually submitting to a breath test and blood draw.
The district attorney charged the lawyer with several misdemeanor charges, including disorderly conduct. The lawyer pleaded guilty, but the court withheld an adjudication of guilt and sentencing. The lawyer complied with a deferred prosecution agreement, and the remaining charges were dismissed.
By engaging in conduct leading to his arrest for, and eventual guilty plea to, the criminal act of misdemeanor disorderly conduct under Wis. Stat. section 947.01(1) with a dangerous weapon enhancer under Wis. Stat. section 939.63(1)(a), the lawyer violated SCR 20:8.4(b), which states it is misconduct to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
Lack of Diligence and Lack of Communication
Violations of SCR 20:1.3 and SCR 20:1.4(a) and (b)
A lawyer was appointed by a court to represent a client in criminal postconviction proceedings. By failing to file a notice of appeal or postconviction motion by the statutory deadline, the lawyer violated SCR 20:1.3. By also failing to communicate with the client for eight months, even when the client filed a memorandum in support of action, the lawyer violated SCR 20:1.4(a)(1)-(4) and (b).
After reestablishing communication, the lawyer obtained an extension and filed a postconviction motion. By then failing to file a supporting brief by the deadline, the lawyer violated SCR 20:1.3. The lawyer requested additional time to file a new postconviction motion, which the court allowed. The lawyer did not file a new motion. At the client’s request, the circuit court granted the lawyer’s withdrawal. By then failing for five months to take the steps necessary to ensure that he was no longer counsel of record and taking the steps only after being ordered to do so by the court of appeals, the lawyer violated SCR 20:1.3.
In a second matter, a client hired the lawyer to prepare a land contract. The lawyer prepared an initial draft, which the client informed the lawyer was missing key elements. The lawyer stated he would make revisions but then failed to do so and did not respond to follow-up communications from the client for more than two months. The client hired another lawyer to complete the work. By failing to timely make revisions to the client’s land contract, the lawyer violated SCR 20:1.3. By failing to respond to the client’s communications, the lawyer violated SCR 20:1.4(a)(4).
The lawyer had no prior discipline.
Lack of Diligence
Violations of SCR 20:1.4(a)(3) and (4)
In December 2019, the court appointed a lawyer to represent an incarcerated individual in a paternity matter in which the incarcerated individual sought additional personal contact with his two children. The individual was serving a life sentence without parole. The lawyer met with the client and took preliminary steps to meet with other people involved in the matter and negotiate a resolution. The lawyer appeared on behalf of the client at several status conferences and assisted in the entry of a temporary order. During this time, the lawyer stopped communicating with the client.
After months passed and the client received no communications from the lawyer, the client wrote the lawyer letters seeking information about the matter. The lawyer did not respond to the correspondence or otherwise provide the client with information about the status of the case. The client then began corresponding directly with the court, noting that the lawyer had abandoned him. Ultimately, the court worked directly with the appointed guardian ad litem to resolve the issues and the lawyer played no further role in the proceedings.
By failing to communicate with the client about developments in the paternity case, the lawyer violated SCR 20:1.4(a)(3),
which provides, “(a) A lawyer shall: … (3) keep the client reasonably informed about the status of the matter.”
By failing to promptly comply with reasonable requests by the client for information, the lawyer violated SCR 20:1.4(a)(4), which provides, “(a) A lawyer shall … (4) promptly comply with reasonable requests by the client for information.
The lawyer received a five-month suspension in 2015.
» Cite this article: 95 Wis. Law. 62-64 (November 2022).
