Vol. 77, No. 6, June 2004
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 Koua
C. Vang
The Office of Lawyer Regulation (OLR) and Koua C. Vang, 40, Madison,
agreed to the imposition of a public reprimand pursuant to SCR 22.09(1).
A referee appointed by the supreme court thereafter approved the
agreement and issued the public reprimand on April 9, 2004, in
accordance with SCR 22.09(3).
The reprimand is based on Vang's conduct in three separate OLR
investigations. In the first matter, a client retained Vang in April
2001 to represent him in a dispute with a general contractor. Vang
actively worked on the client's file for several months, but did not
work on the client's matter subsequent to July 10, 2001. The client
wrote to Vang on Nov. 15, 2001, and requested an update on his case.
Vang did not respond to the client's letter. On March 26, 2002, the
client again wrote to Vang and asked for a refund of his retainer if
Vang was not going to work on his case.
Vang did not respond to the client's March 26 letter for four months.
After Vang had been contacted by the OLR about the matter, Vang wrote a
July 26, 2002, letter to the client, stating that he would like to
finish the case for the client, but that if the client wished to hire
another attorney, Vang would refund a "reasonable amount" of money to
him. After Vang retained an attorney to assist him, Vang eventually
reached an agreement with the client and gave him a partial refund.
By failing to work on the client's matter after July 10, 2001, or to
otherwise advance the client's interests between July 10, 2001, and July
26, 2002, Vang violated SCR 20:1.3, which requires that a lawyer act
with reasonable diligence and promptness in representing a client.
By failing, after July 2001, to keep the client informed about the
status of his matter, by failing to respond to the client's Nov. 15,
2001 letter, and by failing to promptly respond to the client's March
26, 2002 letter requesting a status report or a refund, Vang violated
SCR 20:1.4(a), which requires a lawyer to keep a client reasonably
informed about the status of a matter and promptly comply with
reasonable requests for information.
In the second matter, the State Public Defender (SPD) appointed Vang
to serve as appellate counsel for a defendant whose probation had been
revoked.
Between Dec. 26, 2001, and Feb. 11, 2002, the defendant sent at least
two letters to Vang requesting information and a copy of his police
report, but received no response. The defendant contacted the SPD, which
then prompted Vang to write the defendant. Vang answered that he would
meet with the defendant and discuss the appeal after he had received and
reviewed the transcripts. That letter, dated March 12, 2002, was the
only communication the defendant ever received from Vang.
On May 31, 2002, the defendant again wrote Vang, copying the SPD,
asking about the status of his case and requesting a copy of the police
report. Despite further prompting from the SPD, Vang did not
respond.
After two more letters went unanswered, on March 6, 2003, the
defendant wrote letters to both the Director of the Appellate Division
of the SPD and the Wisconsin Court of Appeals, District IV, regarding
Vang's failure to communicate with him. On March 21, 2003, the court
ordered Vang and the SPD to respond, within 10 days from the date of the
order, to the defendant's March 6, 2003 letter to the court. Vang failed
to respond to the court's order.
On May 2, 2003, the court discharged Vang from his representation of
the defendant and ordered Vang to transmit the defendant's file to the
SPD no later than May 13, 2003. Vang failed to comply with the court's
May 2, 2003 order. On May 16, 2003, and again on June 10, 2003, the
court ordered Vang to turn the defendant's file over to the SPD, but
Vang failed to comply with the court's orders by the specified dates.
After retaining an attorney to assist him, Vang had the defendant's file
hand-delivered to the SPD on July 1, 2003, along with a June 30, 2003,
letter of apology from Vang. The court granted the defendant an
extension of time to file for post-conviction relief.
Vang violated SCR 20:1.3 by failing, after March 12, 2002, to advance
the defendant's interests in his case and by failing to respond to SPD
inquiries regarding the status of the defendant's case.
Vang violated SCR 20:1.4(a) by failing to respond to numerous written
inquiries from the defendant, by failing to speak with the defendant in
person or by telephone or to otherwise keep him apprised of the status
of his case, and by failing, except for the March 12, 2002 letter, to
establish any communication whatsoever with the defendant.
By failing to deliver the defendant's file and transcripts to the
SPD, Vang violated SCR 20:1.16(d), which requires, in part, that a
lawyer take steps to protect a client's interests upon termination of
representation, including surrendering papers to which the client is
entitled.
The third matter, brought to the OLR's attention by the SPD, involves
Vang's conduct as appointed appellate counsel for eight different SPD
clients. None of the eight clients filed grievances with the OLR.
However, with respect to seven of the eight clients, Vang performed no
work on the clients' files and established no communication with the
clients for periods of time ranging from six months to more than a year.
With respect to the eighth client, Vang advised the client that he
intended to file a no merit report, but then failed to file the report,
failed to perform any further work on the file, and failed to have any
further communication with the client for more than a year.
After retaining an attorney to assist him, Vang had the clients'
files hand-delivered to the SPD on July 1, 2003, along with a June 30,
2003, letter of apology from Vang.
With respect to each of the eight SPD clients, Vang violated SCR
20:1.3 by failing to work on the client's matter or to otherwise advance
the client's interests, and violated SCR 20:1.4(a) by failing to keep
the client informed about the status of the matter or establish
communication with the client.
During the OLR's investigations, medical records showed that Vang
previously had been diagnosed with and received treatment for major
depression. Medical reports obtained during the investigation related
Vang's professional conduct to his ongoing medical condition. Vang's
reprimand includes the condition that he continue to receive
professional treatment for his depression for two years from the date of
the reprimand, unless earlier discharged, and that the OLR be provided
with quarterly medical treatment reports.
Public reprimand of David C.
Bangert
The OLR and David C. Bangert, 55, Milwaukee, agreed to an imposition
of a public reprimand pursuant to SCR 22.09(1) on March 29, 2004. A
referee appointed by the supreme court thereafter approved the agreement
and issued the public reprimand in accordance with SCR 22.09(3).
Bangert represented a client in a personal injury case. The client
and his wife were estranged and living apart. The client and his wife
agreed that he owed her the sum of $35,000. At the client's
instructions, Bangert prepared a lien in favor of the client's wife and
against the client for $35,000, to be paid from any settlement proceeds
or verdict. The client and Bangert signed the lien. Bangert sent a copy
of the signed lien to the client's wife and told her that he would file
the lien in circuit court in the pending personal injury case. Bangert,
however, never filed the lien. When the wife learned that Bangert had
not filed the lien, Bangert told her not to worry about the lien because
he would protect her interest.
The personal injury lawsuit settled during mediation, and the client
agreed to a mediated settlement amount of $75,000. The net proceeds to
the client were approximately $46,000. The client instructed Bangert not
to honor the lien and to pay the money directly to him. The client told
Bangert that he had been making payments to his wife and that the client
needed to use a substantial portion of the net proceeds to pay on his
mortgage in order to avoid foreclosure. Bangert distributed all of the
net settlement proceeds to the client and did not honor the lien to the
wife. The client's wife called Bangert approximately two weeks after the
client received the settlement and learned that the husband had received
a portion of the settlement.
In failing to notify the client's wife when he received the
settlement proceeds and in disbursing the entirety of the net settlement
proceeds to the client when Bangert knew that the client's wife held a
lien on the proceeds, Bangert violated SCR 20:1.15(b). In leading the
client's wife to believe that he would file the lien with the court and
that he would protect her interest, Bangert violated SCR 20:8.4(c).
Disciplinary proceeding against James
M. DeGracie
The Wisconsin Supreme Court suspended the law license of James M.
DeGracie, 43, formerly of Black River Falls, for eight months, effective
April 23, 2004. Disciplinary Proceedings Against DeGracie, 2004
WI 44. DeGracie committed six counts of misconduct with respect to his
representation of two clients and DeGracie's response to the OLR's
investigation of grievances filed by those clients. A court-appointed
referee granted the OLR's motion for default judgment based on
DeGracie's failure to participate in the disciplinary case.
In the first matter, in April 2000, DeGracie was appointed as
appellate public defender for a client whose mandatory release date was
in December 2000. The client promptly wrote to DeGracie and asked him to
file a motion for sentence modification, wanting to appear before the
sentencing judge as soon as possible. DeGracie did not reply. DeGracie
met with the client in June 2000, and told him that if they were
successful on appeal, the client could possibly be resentenced for more
time than originally was imposed. After the meeting, however, the client
expected to return to circuit court soon for a motion hearing.
During the fall of 2000, the client tried to make many collect calls
to DeGracie, but DeGracie's phone was blocked. The client wrote to
DeGracie in September 2000 and complained about not having heard from
him since their June meeting, but DeGracie did not reply. The client
complained to SPD staff, who wrote to DeGracie in October 2000, and
asked him to respond to the client. DeGracie did not respond. In
mid-October 2000, the client wrote to the SPD and asked to withdraw his
appeal, fearing he might receive a longer sentence if resentenced. In
early November 2000, the SPD wrote to DeGracie and again requested that
he reply to the client, but DeGracie did not respond. The client
subsequently filed a grievance with the OLR. While DeGracie filed an
initial response to the grievance, he failed to reply to the OLR's
requests for additional information. DeGracie never withdrew from the
representation nor did he submit any closing documents to the SPD.
DeGracie informed the OLR that he intended to close his practice and
move to California, while maintaining his Wisconsin license.
By failing to communicate in any manner with the client after
mid-June 2000, including failing to communicate after receiving letters
from the client and from the SPD, who informed DeGracie that the client
had requested assistance when he was unable to reach him, DeGracie
violated SCR 20:1.4(a). By failing to respond to two letters from the
OLR, DeGracie failed to cooperate with an OLR investigation, contrary to
SCR 21.15(4), 22.03(2), and 22.03(6).
In an unrelated matter, in May 2000, DeGracie was appointed as a
client's appellate public defender to seek a sentence modification and
post-conviction relief. DeGracie failed to file any pleadings on the
client's behalf. DeGracie also failed to reply to the client's letters,
accept some of his collect calls, or return a copy of the file to
him.
In April 2001, the SPD wrote to DeGracie after the client had
complained about DeGracie's inaction. The SPD asked DeGracie to write to
the client, but he failed to do so. In June 2001, the SPD wrote again to
DeGracie after the client complained. In early August 2001, the client
told the SPD that DeGracie had said that he was waiting for a court date
and that he had mailed a copy of the file to the client.
In early August 2001, SPD staff telephoned DeGracie, who stated that
he had twice sent copies of the file to the client. DeGracie also said
that he would be filing a motion for sentence modification later that
week. After three weeks had elapsed, the SPD informed DeGracie that if
that agency did not receive a copy of a filed motion within a week, it
would decertify DeGracie from taking SPD cases. In early September 2001,
the SPD called DeGracie, who said he had filed the sentence modification
motion on behalf of the client and would send a copy of the motion to
the SPD. The SPD called DeGracie three more times in September and
October 2001, and each time DeGracie asserted that he had filed the
motion. DeGracie, however, never filed the motion.
After the client filed a grievance, DeGracie subsequently failed to
respond to two written requests from the OLR to submit a written
response to the grievance.
By failing to take any action on the client's behalf, despite
receiving numerous inquiries from the client and the SPD, DeGracie
violated SCR 20:1.3. By failing to respond to letters from the client
and by failing to communicate with the client after receiving letters
from the SPD indicating that the client was requesting assistance
regarding his case, DeGracie violated SCR 20:1.4(a). By telling the SPD
on four occasions that he had filed a motion on the client's behalf,
when in fact, DeGracie had not done so, DeGracie violated SCR 20:8.4(c).
By failing to respond to two letters from the OLR, DeGracie violated SCR
21.15(4), 22.03(2), and 22.03(6).
In addition to receiving the eight-month suspension, DeGracie was
ordered to pay to the OLR the $586.23 costs of the disciplinary
proceeding.
DeGracie had no prior disciplinary record. His Wisconsin law license
has been suspended since 2002 for failing to pay State Bar dues and for
noncompliance with CLE requirements.
Disciplinary proceeding against
Virginia Rose Ray
On April 23, 2004, the Wisconsin Supreme Court suspended the law
license of Virginia Rose Ray, Dodgeville, for six months, for misconduct
consisting of failing to return the unearned portion of a retainer fee
(SCR 20:1.16(d)) and failing to cooperate with the OLR's investigation
into a grievance (SCR 21.15(4), 22.03).
Ray charged a divorce client a "flat fee" of $5,000 and the fee
agreement stated that it was "nonrefundable" and in fact "nonrefundable
under any circumstances." Ray, however, withdrew during the course of
the representation. Ray did not refund any portion of the fee when the
client hired successor counsel. After a disciplinary hearing, the
referee found that the value of Ray's services to the client was $2,500.
Moreover, during the OLR's investigation, Ray failed to respond to at
least two letters and did not appear at an OLR District Committee
meeting.
Although the referee recommended a five-month suspension and neither
party appealed, the court imposed a six-month suspension, characterizing
a five-month suspension as "insufficient," and citing to the court's
frequent following of a progressive discipline scheme. This was Ray's
second disciplinary matter. In Disciplinary Proceedings Against
Ray, 2002 WI 116, 256 Wis.2d 19, 651 N.W.2d 727, Ray's license was
suspended for 60 days, and had remained suspended because she had not
satisfied the conditions of the order.
In addition to the six-month suspension, the court ordered Ray to
make restitution of $2,500 to her former client and to pay to the OLR
the $4,721.59 costs of the proceeding.
Wisconsin Lawyer
