Vol. 75, No. 5, May
2002
Private Reprimand Summaries
The Wisconsin Supreme Court permits the Office of Lawyer Regulation
(OLR) to publish, for educational purposes, in an official State Bar
publication a summary of facts and professional conduct rule violations
in matters in which OLR imposed private reprimands. The summaries do not
disclose information identifying the reprimanded attorneys.
The following summaries of selected private reprimands, imposed by
OLR, are printed to help attorneys avoid similar misconduct problems.
Some of the summaries may indicate violations of the rules that were in
effect prior to Jan. 1, 1988. The current rules proscribe the same types
of misconduct.
Under the new rules of lawyer regulation, a court-appointed referee
will impose private reprimands with consent of the attorney. See SCR
22.09 (2000).
Notarizing a False Affidavit; Failing to Respond to a Client's
Request for Fee Itemization
Violations of SCR 20:1.4(a) and 20:8.4(c)
In July 1998, an attorney agreed to represent a couple at the real
estate closing concerning the sale of the couple's residence. On the day
of the closing, Aug. 31, 1998, the attorney and the couple discussed an
affidavit regarding construction liens, which had to be signed for the
closing. The husband told the attorney that work had been done on his
property in the past six months by three different repairmen. The
husband stated that he had paid for all the work done, but he did not
have any lien waivers from the repairmen.
The attorney then allowed the husband to sign an affidavit stating
that no work had been done on the property in the past six months. The
attorney indicated that since "there was no possibility of a lien being
attached, we just proceed as though there had been no work done within
the six months prior to closing." The attorney also stated that if his
client had told him that the repair bills had not been paid, the
attorney would not have allowed the affidavit to be submitted. The
attorney notarized the affidavit, knowing that the husband's sworn
statement was not true.
On the day of closing, the attorney informed the husband that the
attorney fees were $1,800. On Oct. 22, 1998, the husband sent a letter
to the attorney in which he questioned the amount of attorney fees and
requested a refund of $1,300. On Nov. 2, 1998, the attorney sent the
couple a refund of $200. On Dec. 1, 1998, the husband sent the attorney
a letter requesting an itemized statement of the attorney fees. On March
4, 1999, the husband sent a second letter requesting an itemization. On
March 25, 1999, the attorney responded that he would submit to fee
arbitration but did not provide an itemization.
By failing to respond to the husband's two requests for an itemized
statement of attorney fees, the attorney failed to keep a client
reasonably informed about the status of a matter and promptly comply
with reasonable requests for information, in violation of SCR 20:1.4(a).
By allowing the man to sign an affidavit the attorney knew was false,
and by notarizing the affidavit, the attorney engaged in conduct
involving misrepresentation, in violation of SCR 20:8.4(c).
Lack of Diligence; Conflict of Interest
Violations of SCR 20:1.3 and 20:1.7(a)
A lawyer represented a land contract vendor in a foreclosure action
against her son and daughter-in-law, the defaulting land contract
vendees. The action had been filed by predecessor counsel and was
pending when the lawyer was retained. The lawyer violated SCR 20:1.3 by
failing to enter his appearance on behalf of his client for more than
seven months after he was retained and by failing to appear on his
client's behalf at a scheduling conference in the matter.
At the time of the lawyer's retention as vendor's counsel in the land
contract foreclosure, the adverse parties in the foreclosure were also
parties to a divorce action. The lawyer became the attorney of record
for the vendor's son in his divorce and also represented the son in a
misdemeanor criminal case. By representing the vendor in a land contract
case in which the vendor was adverse to her son, while also representing
the son in his divorce and in a criminal case, without obtaining written
conflict waivers from either the vendor or the son following
consultation, the lawyer violated SCR 20:1.7(a).
Incompetent Representation; Attempt to Secure Malpractice Release
from Client
Violations of SCR 20:1.1, 20:1.8(h), and 20:8.4(a)
An attorney represented a woman in connection with her purchase of an
approximate 50-acre property in a Wisconsin town, and, subsequent to
purchase, in legal matters relating to the property. The property is
subject to an easement in favor of a neighboring gun club, which allows
the club to go upon an approximate seven-acre section of the property to
recover targets and shot.
The client's road access to her property is limited on the
approximate six days a year that the gun club conducts trap shoots. The
client applied to the town in which the property lies for construction
of a road that would provide access even during trap shoots. The town
denied the application. The attorney attempted to appeal the denial of
the application to the circuit court, but the action was dismissed
because the attorney did not follow statutory procedure for commencement
of an action for certiorari review by the circuit court. The attorney's
failure in that regard violated SCR 20:1.1, which requires competent
representation. The dismissal did not prohibit the client from again
applying to the town for a road, and in the event of another denial,
from seeking circuit court review in accordance with statutory
procedures.
The attorney also filed an action on behalf of the client against the
sellers of the subject property and the county in which the property
lies. The action ultimately was dismissed as to all defendants. In the
course of the litigation, the attorney conditioned his continued
representation on the client's execution of a malpractice release. The
attorney specifically referred to the proffered release, which the
client declined to sign, in his motion to withdraw from the
representation. By conditioning his continued representation of the
client on her execution of a malpractice release, the attorney attempted
to violate SCR 20:1.8(h), which generally prohibits an attorney from
making an agreement prospectively limiting the attorney's liability to a
client for malpractice. An attempted violation of the Rules of
Professional Conduct is prohibited under SCR 20:8.4(a).
The attorney had no prior discipline.
Revealing Confidential Information; Failing to Protect Client's
Interests upon Withdrawal; and Disobeying an Obligation under the Rules
of a Tribunal
SCR 20:1.6(a), 20:1.16(d), and 20:3.4(c)
An attorney represented a woman in a small claims action against a
storage company. The attorney was unable to appear at a pretrial
conference, and he arranged for another attorney from another law firm
to appear on his client's behalf without the client's knowledge or
consent, and he discussed the merits of the client's case with the other
attorney.
After the pretrial hearing in September 1999, the court sent the
attorney a notice of the client's trial date in November 1999, but the
attorney did not forward the notice to the client. The attorney
maintains that the client discharged him in September 1999. The
attorney, however, never advised the court that he was withdrawing from
the case, even though the court's rules did not allow counsel to
withdraw except upon written motion showing good cause or stipulation
signed by the client, nor did he return the legal file to the client.
Subsequently, the court dismissed the client's case after she and the
attorney failed to appear for the hearing in November 1999. The attorney
did not return the file to the client until January 2000.
By discussing the client's case with an attorney from another law
firm and having that attorney appear at a pretrial conference without
the client's knowledge or consent, the attorney revealed information
relating to the representation in violation of SCR 20:1.6(a). By failing
to forward the court's notice to the client and by failing to return the
legal file to the client, the attorney did not protect the client's
interests upon termination of the representation in violation of SCR
20:1.16(d). In addition, by failing to appear at the client's trial on
Nov. 11, 1999, and by failing to obtain the consent of the court to
withdraw from the client's case, the attorney knowingly disobeyed an
obligation under the rules of a tribunal in violation of SCR 20:3.4(c).
As a condition of the reprimand, the attorney reimbursed the client
$31.21, the client's costs for refiling her small claims action.
Lack of Diligence; Failure to Communicate; Failure to Cooperate with
Investigation; and Failure to Return Client Property
Violation of SCR 20:1.3, 20:1.4(a), 20:1.16(d), and 22.07(2)
(1988)
An attorney represented the estate of a woman's mother. The woman
served as personal representative for the estate. The only substantial
asset of the estate was a house, which eventually was sold to a
community housing rehabilitation agency. However, while the estate was
pending, a municipal lead abatement ordinance citation on the house was
issued to the woman. The attorney agreed to represent the woman on the
citation. The attorney sent a notice of retainer to the municipal court.
At the pretrial, an agreement was reached whereby the forfeiture would
be reduced from $1,000 plus court costs to $100 plus court costs if a
signed agreement that no children would reside on the premises while
work to abate the lead was being completed was on record. The attorney
consequently entered a no-contest plea to the citation on behalf of his
client.
Shortly thereafter, a city official saw children at the property and
issued a second citation. A few weeks later, the house was sold. The
attorney informed the municipal court that the house had been sold, and
the municipal judge dismissed the second citation because of improper
service. The municipal court clerk sent the attorney a letter informing
him that the second citation was dismissed, but the letter also clearly
stated that the first citation was still active and informed the
attorney of the total fine and the date on which the fine was due. The
attorney simply told the woman that the municipal citation was "taken
care of." She therefore did not make payment and a commitment was issued
for her arrest because of the unpaid forfeiture. The woman was arrested,
spent a night in jail, and had to pay $1,284 to be released. The
attorney states that he believed that the citations were resolved by the
sale of the house. The attorney eventually reimbursed the woman for the
$1,284 she paid to be released from jail.
In a second matter involving the same woman, the attorney agreed to
represent the woman in her divorce from her husband, who resided out of
state. The woman provided $200 to the attorney to commence the matter,
which she believed to be an initial retainer. The attorney asserted that
the $200 was for filing fees, and he therefore did nothing to commence
the action because he normally does not begin a divorce action without a
retainer. The woman contacted the attorney repeatedly about the divorce
and was told that he "had to get a date." The woman eventually learned
that the action had not been filed. She then commenced and completed the
divorce action herself. The attorney returned the $200 to the woman
after her grievance was filed.
By failing to ever provide the municipal court with the signed
agreement necessary to fulfill the plea agreement he accepted on behalf
of his client, the attorney failed to act with reasonable diligence and
promptness in representing a client, in violation of SCR 20:1.3. By
failing to clearly explain to the woman that she was still responsible
for payment on the first citation after the second was dismissed, and
failing to clearly explain to the woman that he would not commence work
on the divorce absent a retainer, the attorney failed to keep his client
reasonably informed about the status of those matters, in violation of
SCR 20:1.4(a).
In an unrelated matter, the attorney represented a husband and wife
in a dispute over property they had purchased that subsequently was
discovered to have an inadequate sanitary system. A lawsuit was filed in
1991. However, that suit was voluntarily dismissed shortly thereafter
because a copy of the land contract could not be produced.
Several years after the lawsuit was dismissed, the wife began calling
the attorney and asking for the return of tax documents. Despite several
phone conversations, the attorney failed to ever provide the documents.
In 1998, the wife commenced divorce proceedings. The wife's counsel in
those proceedings called the attorney and requested the tax documents
and followed up the phone call with two letters to the attorney. The
attorney failed to ever provide the documents. Additionally, the
attorney failed to ever provide a written response to the grievance,
despite several written requests and extensions of time in which to
provide the response.
By failing to ever return the tax documents, despite repeated
requests, the attorney failed to provide property to a client that the
client was entitled to receive, in violation of SCR 20:1.16(d). By
failing to ever provide a written response to the grievance, the
attorney violated SCR 22.07(2) (1988).
The attorney had a prior private reprimand.
Failure to Communicate with Client
Violation of SCR 20:1.4(a)
In late 1998, a man met with an attorney to discuss his son's
criminal matter. The son had been sentenced on Jan. 13, 1998 to seven
years in prison for distributing a controlled substance and possessing
drug paraphernalia. One week after the initial consultation, the
attorney wrote to the man, with a copy to the man's son, summarizing the
initial consultation. The attorney agreed that he would examine the
trial court record for appealable or post-conviction issues and do legal
research and analysis to determine any available means for relief. The
attorney's letter made clear that the time for filing an appeal and
motion for post-conviction relief had passed before he was consulted,
but that he would attempt to find a mechanism whereby the issues of
concern to the man could be heard. The attorney indicated that he would
make a written report when he had concluded his work in the matter. The
attorney requested a flat fee of $1,500, which the man paid at the end
of November 1998.
Thereafter, the attorney failed to communicate his conclusions to the
son or respond to two letters from the man requesting information. The
attorney also failed to respond to the man's phone calls between
December 1998 and February 1999.
On or about February 1999, the attorney met with the man and orally
reported his findings. The attorney stated at that time that the avenues
for bringing the issues to the court's attention were no longer
available due to the passage of time. The attorney again told the man
that he would reduce his conclusions and recommendations to a written
report. The attorney never prepared a written report or used any other
means of directly conveying his conclusions to his client.
By failing to communicate with the client in a timely manner
regarding his conclusions and in failing to respond to his client's
requests for information, the attorney acted contrary to SCR
20:1.4(a).
The attorney had a prior public reprimand.
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