Vol. 77, No. 11, November
2004
Private Reprimand Summaries
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.
Lack of Diligence; Lack of Communication in Criminal Matter
Violations of SCR 20:1.3; 20:1.4(a)
The State Public Defender's office appointed an attorney to represent
a client on appeal of his criminal conviction. The attorney first
contacted the client by mail two months after being appointed and
advised the client that he would contact him again after reviewing the
transcripts and file.
A day after sending the initial letter, the attorney received the
final transcript. Pursuant to state statute, the attorney had 60 days
from that date to file a notice of appeal or motion for postconviction
relief and 180 days to file a no-merit report.
The attorney did not communicate with the client again for more than
three months, at which time the attorney told the client in a phone
conversation that he did not believe the appeal had merit but that he
would review the file again and arrange another phone conference within
the next 10 to 14 days. The attorney did not arrange the telephone
conference. His next contact with the client was more than three months
later when he advised the client in writing that he intended to file a
no-merit report and would arrange another telephone conference with the
client the next week. However, the attorney neither arranged another
telephone conference with the client nor had any further communications
with the client until he filed the no-merit report five months later.
Although the no-merit report was filed five months late, the court of
appeals accepted it.
By filing the no-merit report five months late, the attorney failed
to act with reasonable diligence and promptness in representing a
client, in violation of SCR 20:1.3. By failing adequately to communicate
with the client between his appointment and the filing of the no-merit
report, the attorney failed to keep a client reasonably informed about
the status of a matter, in violation of SCR 20:1.4(a).
Conflict of Interest; Imputed Disqualification
Violations of SCR 20:1.7(a); 20:1.10 (a)
An attorney licensed to practice law in both Wisconsin and another
jurisdiction consented to a private reprimand pursuant to SCR 20:8.5 and
22.22 as reciprocal discipline following findings by disciplinary
officials in the other jurisdiction that: 1) the attorney violated its
rule, comparable to SCR 20:1.7(a), against representing a client in a
matter adverse to the position of another client; and 2) the attorney's
conflict was imputed to other members of the attorney's law firm
pursuant to a rule comparable to SCR 20:1.10(a).
The attorney had previously represented the client in an action
against Company A, which was resolved. Subsequently, the attorney taught
classes to some managers at Company A and later became affiliated with a
consulting firm to provide consulting services to Company A.
Some years later, the client again retained the attorney and the
attorney's firm to represent the client against another employer,
Company B. Company B appealed an adverse ruling in the matter, which
remained pending for the next two-and-one-half years.
During the time that the Company B matter was pending, the client,
again employed by Company A, became involved in a dispute with an
immediate supervisor. The attorney learned of the dispute through the
consulting firm, and met with the client and a second-level supervisor.
Thereafter, the attorney was involved with the consulting firm's
investigation, discussing the matter with the firm's lawyer, reviewing
and editing the investigative materials, and reviewing the proposed
disposition, which the attorney discussed with Company A's
management.
Pursuant to the consulting firm's recommendation, in which the
attorney concurred, Company A decided to reprimand the client and the
client's immediate supervisor, conditioning their future employment on
their apologizing and agreeing to receive behavioral counseling. The
client refused and was discharged from Company A.
Thereafter, through independent counsel, the client sought an
unredacted copy of the consulting firm's investigatory reports. The
attorney's law firm researched whether the consulting firm was required
to release the reports and advised the consulting firm and Company A
that the consulting firm was not covered by the governing statute and,
therefore, had no obligation to give the reports to the client. The
client later filed a civil action against Company A and the consulting
firm seeking a court order directing one or both of them to turn over
the documents. The consulting firm retained other counsel to represent
it in the lawsuit.
By researching the relevant statute and advising the consulting firm
and Company A regarding their obligation to produce the unredacted
documents sought by the client, without the client's knowledge that the
attorney's firm was working on the client's document requests and while
the client's case against Company B was still pending, the attorney had
a conflict of interest in representing one client with a position
adverse to another client, pursuant to the other jurisdiction's rule
comparable to SCR 20:1.7(a). To the extent that the research was
performed and advice came from others within the attorney's firm, there
was an imputed disqualification, pursuant to the other jurisdiction's
rule comparable to SCR 20:1.10(a).
Competence; Failure to Put Contingent Fee Agreement in Writing
Violations of SCR 20:1.1; 20:1.5(c)
A client was injured on a cruise ship and retained an attorney to
represent her on a claim against the cruise line. The attorney stated
that his unwritten fee agreement with the client was that he would have
charged a reduced hourly fee if he had been able to obtain a settlement
with the cruise line and no fee if the claim had to be referred to a
Florida-licensed attorney to file a lawsuit against the cruise line. As
stated, the fee agreement was contingent on the outcome the attorney
would obtain for the client. By failing to put a contingent fee
agreement in writing, the attorney violated SCR 20:1.5(c).
A couple of weeks after the client was injured, she sent the attorney
a copy of her passenger ticket. The passenger ticket had a forum
selection clause that stated that all lawsuits arising in connection
with the ticket shall be litigated in Dade County, Fla. The ticket also
had a contractual limitation that stated that all lawsuits to recover on
any claim shall be commenced within one year after the date of injury.
The attorney failed to read the contractual limitation and handled the
client's claim under the assumption that the applicable statute of
limitation was four years. The attorney did not settle the client's
claim before the contractual limitation expired, nor did he refer it to
a Florida-licensed attorney before the expiration.
By failing to read the passenger ticket's contractual limitation and
by failing to settle the client's claim or refer it to a Florida
attorney within one year of the date of the client's injury, the
attorney failed to provide competent representation, in violation of SCR
20:1.1.
Failure to Communicate
Violation of SCR 20:1.4(a)
The attorney violated SCR 20:1.4(a) by failing to promptly comply
with reasonable requests for information. The attorney's retainer
agreement reads, "I have been advised that I will receive periodic
billing statements, and I agree to pay any balance due on such
statements promptly unless installment payments are current." The
attorney did not send the client any billing statement during the first
11 months of representation, even after requests by the client.
Failure to Communicate
Violation of SCR 20:1.4(b)
In September 2002, a couple consulted an attorney regarding
bankruptcy. At that time, the couple had secured debt of $50,000 in
their home valued at $40,000. The attorney advised the couple regarding
bankruptcy and agreed to attempt to restructure the couple's debt to
allow them to reaffirm the debt and retain their home.
In October 2002, the attorney received loan renewal documents from
the creditor; the terms of the renewal called for monthly payments of
$495.54. There was a delay in filing the bankruptcy petition, and the
reaffirmation and renewal were also delayed. The attorney had counseled
the clients to not make payments on the home debt but failed to tell
them to set aside the money to be applied toward the debt at
reaffirmation.
By the time the bankruptcy petition was filed, the creditor had filed
a foreclosure action. The monthly payment required for reaffirmation and
renewal had increased to $781. Because the couple did not set aside
funds monthly and could not afford the higher monthly payment, the
reaffirmation could not occur. The creditor subsequently was able to
obtain relief from the bankruptcy automatic stay and purchase the home
at a sheriff's sale.
After conducting a formal investigation pursuant to SCR 22.03 and
22.04, the Office of Lawyer Regulation (OLR) director found that the
attorney violated SCR 20:1.4(b), which states that a "lawyer shall
explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation," by failing to
advise the couple to set aside funds to apply toward the debt
reaffirmation.
Neglect; Failure to Communicate with Client
Violations of SCR 20:1.3; 20:1.4(a)
A lawyer filed a lawsuit in federal court for a client who was
seeking reinstatement of his Social Security disability benefits. The
court imposed deadlines for filing the plaintiff's brief and reply
brief, but the lawyer did not file them. On the deadline for filing the
plaintiff's brief, the lawyer requested and received a continuance. The
lawyer subsequently requested a second continuance, but by then the
commissioner had issued a report and recommendation to dismiss the case.
The lawsuit subsequently was dismissed.
The lawyer did not inform the client that the lawsuit was dismissed.
A year later, the client learned of the dismissal after a friend wrote a
letter of inquiry to the court. The court replied and told the client
that the case was dismissed because his lawyer had failed to file any
briefs to meet the plaintiff's burden to prove that the commissioner's
decision was incorrect.
The lawyer expressed extreme remorse to the OLR for her misconduct
and indicated there were extenuating circumstances involving her health,
her family's health, and military obligations.
In failing to file briefs on the client's behalf, which resulted in
the court's dismissing the case, the lawyer violated SCR 20:1.3. In
failing to inform the client when the court dismissed the lawsuit, the
lawyer violated SCR 20:1.4(a).
Safekeeping Property; Meritorious Claims and Contention; Conduct
Involving Dishonesty, Fraud, Deceit, or Misrepresentation;
Responsibilities Regarding Nonlawyer Assistants
Violations of SCR 20:1.15(d); 20:3.1(a)(2), (a)(3); 20:8.4(c);
20:5.3(b); 20:1.15(e), (g)
Sometime in 1995, a man signed a lease to rent residential property
owned by another party. The property had been built recently, and when
the man moved in, several items were yet to be completed. During the
tenancy, several lawsuits arose between the landlord and the tenant. All
of the cases were consolidated into one civil court matter.
While the matter was pending before the circuit court, the respondent
attorney held in his trust account approximately two months' worth of
rent payments owed by his client (the tenant), plus one-half of the
tenant's security deposit, for a total of $2,874. During the pending
litigation, the attorney indicated to both the court and opposing
counsel that he would retain the funds in his client trust account until
the court issued an order regarding how the money should be
disbursed.
In June 1998, the court issued a decision in favor of the landlord
and also ordered fees to the landlord. The court further ordered that
the tenant be personally responsible for $9,161 and that the attorney be
ordered to pay $2,000 in attorney fees for bringing a "frivolous" action
on behalf of his client against the landlord.
The attorney never disbursed the funds from his client trust account
to opposing counsel or the landlord. Instead, after consulting with his
client's bankruptcy attorney, the attorney sent his client a check from
the attorney's client trust account for $2,275 and disbursed to himself
$599 in attorney fees owed by the client. By letter, the attorney
advised opposing counsel that his client intended to file for
bankruptcy, and at the direction of his client's bankruptcy attorney,
the lawyer disbursed the funds directly to his client because if he were
to disburse the funds directly to the landlord, he would be violating
the preferences under the federal bankruptcy code. The client filed for
bankruptcy. The attorney did pay the $2,000 in attorney fees to the
landlord as ordered by the court.
During the course of the investigation relating to disbursements from
the client trust account, the attorney also acknowledged that he had not
maintained complete records of his client trust account for several
months during 1998 and early 1999, due to inadequate records kept by his
firm's office personnel.
In failing to retain funds on deposit in his client trust account
when a third person was claiming the funds and then subsequently in
disbursing $2,275 of the funds to his client and in disbursing $599 to
himself for fees, the attorney violated SCR 20:1.15(d).The attorney also
knowingly advanced a frivolous factual position, in violation of SCR
20:3.1(a)(2), and filed a suit, asserted a position, delayed a trial, or
took other action on behalf of his client when the attorney knew or when
it was obvious that such an action would serve merely to harass or
maliciously injure another, in violation of SCR 20:3.1(a)(3). Further,
in advising opposing counsel and the court that the disputed funds would
continue to be held in his client trust account until the court issued
an order regarding how the money should be disbursed, and in
subsequently disbursing those funds to his client and himself without a
court order in his favor, the attorney engaged in conduct involving
dishonesty, fraud, deceit, or misrepresentation, in violation of SCR
20:8.4(c). In failing to make reasonable efforts to ensure that a
nonlawyer employee of his firm was maintaining complete trust account
records, the attorney failed to properly supervise a nonlawyer employee,
in violation of SCR 20:5.3(b).
Finally, in failing to keep a cash receipts journal, a disbursements
journal, and individual client ledgers, the attorney failed to keep
complete trust account records, in violation of SCR 20:1.15(e), and
filed annual State Bar certificates that falsely certified that he had
maintained required trust account records, in violation of SCR
20:1.15(g).
Failure to Hold Property in Trust; Failure to Communicate with
Client; Neglect; Failure to Return Unearned Fee on Termination of
Representation; Failure to Cooperate with OLR Investigation
Violations of SCR 20:1.15(a); 20:1.3; 20:1.4(a); 20:1.16(d);
22.07(2) (1998)
In December 1999, a client delivered a $500 retainer to a lawyer to
bring a personal injury suit. The contingent fee agreement stated that
the retainer would be applied toward legal fees and expenses and would
not be deposited into a client trust account. The retainer fee was
deposited into the law firm's business account.
The lawyer never filed a lawsuit even though the lawyer sent a draft
complaint to the client, and the client signed a signature page for the
complaint that was notarized by the lawyer in late January 2000. In
mid-April 2000, the client wrote to the lawyer, complaining about the
lawyer's lack of communication and demanding that the lawyer send to her
proof of all work done on the case within five days. The lawyer did not
reply.
The client filed a grievance in early July 2000. The lawyer failed to
respond to two requests to submit a written response to the grievance.
The lawyer subsequently responded to further requests for
information.
The lawyer told the OLR that the lawyer intended to refund the $500
retainer to the client. Instead, the lawyer sent the client a check for
$400 and deducted $100 for time spent on the case. The client did not
cash the check because it would have been returned for insufficient
funds. The lawyer subsequently returned the full $500 retainer.
In failing to deposit a $500 retainer fee into a client trust
account, the lawyer violated SCR 20:1.15(a). In failing to file a
lawsuit after the client had paid a retainer fee and had signed a
complaint that the lawyer had prepared and notarized, the lawyer
violated SCR 20:1.3. In failing to respond to the client's letter in
which the client complained about the lack of communication, the lawyer
violated SCR 20:1.4(a). By failing to refund the full retainer fee for
almost three months, the lawyer violated SCR 20:1.16(d). In failing to
provide a timely written response to the grievance, the lawyer violated
SCR 22.07(2)(1998).
In accepting the private reprimand, the lawyer agreed to attend a law
office management course and the OLR trust account management seminar
and to earn additional continuing legal education (CLE) credits on legal
ethics and professional responsibility, as referenced in SCR
31.02(2).
Neglect; Failure to Communicate with Client
Violations of SCR 20:1.3; 20:1.4 (b)
An inmate committed suicide in a Wisconsin jail. The inmate's mother
sought to pursue a potential claim against the county in which the jail
was located. The first law firm that the woman hired failed to timely
file a notice with the county or to take any other action. The first law
firm was located outside of Wisconsin.
The case was referred to a Wisconsin attorney, who accepted the
referral in November 1998 and opened a file to evaluate the potential
claim. This attorney was informed that the notice of claim had not been
timely filed with the county. The attorney did not begin investigating
the case until April 1999, when he sent two letters to the client, who
responded. The attorney did no further investigation.
Sometime thereafter, the attorney decided to close his file and to
not pursue the matter, but he did not inform the client of this until
after she wrote to him in December 2001, inquiring about the status of
her claim. The statute of limitation had run in 2000.
By failing to evaluate the matter for five months after he accepted
the referral and by failing to inform the client that he would not
pursue her claim until more than three years after the referral, the
attorney violated SCR 20:1.3, which requires a lawyer to act with
reasonable diligence and promptness in representing a client. By failing
to inform the client of the statute of limitation applicable to her
claim and by waiting to inform her that he was not going to pursue any
claim on her behalf until after the statute of limitation had expired,
the attorney failed to explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the
representation, in violation of SCR 20:1.4(b).
Failure to Safe-keep Property; Failure to Maintain Trust Account
Records; False Certification on State Bar Dues Statement
Violations of SCR 20:1.15(a), (e), (g)
An attorney who practices in criminal law and traffic law maintained
a client trust account primarily to hold unearned fees. Between March
and May of 1999, there were nine overdrafts on that trust account. The
overdrafts stemmed from the attorney's disbursing several $50 checks for
attorney fees when there were insufficient funds in the account to cover
those disbursements. The attorney did not deposit law firm funds into
the trust account to remedy the shortfall created by the overdrafts and
the related bank charges. Instead, funds that were apparently deposited
to cover fees in another client's matter were used to cover the
shortfall.
The attorney did not keep a transaction register with a running
balance. While most transactions were recorded on the check stubs, the
attorney failed to note all of the deposits and did not calculate the
balance after each transaction. With respect to disbursements, the
attorney typically made a note on the check stub, indicating the name of
the client and that the disbursement was for fees. However, some check
stubs contained only the notation "fees" without a corresponding
client's name.
In addition, the attorney did not maintain subsidiary ledgers as
required by SCR 20:1.15(e). Instead, the attorney kept handwritten
billing statements that did not include a running balance of the amount
held in trust for each client. Further, the attorney failed to reconcile
the trust account on a monthly basis. Finally, the attorney certified in
three State Bar annual dues statements that the trust account records
required by SCR 20:1.15(e) were being maintained, although they actually
were not being maintained.
By disbursing funds for fees in two client matters when there were
insufficient funds in the trust account belonging to those clients to
cover the disbursements, and by using other clients' funds to remedy the
shortfalls and pay the related bank charges, the attorney violated SCR
20:1.15(a).
By failing to maintain a subsidiary ledger for each client, a monthly
schedule of such subsidiary ledgers, a check (transaction) register with
a running balance that recorded all deposits, a monthly account
reconciliation, and records that would identify the source of all
deposits and the purpose of all disbursements, the attorney violated SCR
20:1.15(e).
By falsely certifying in State Bar dues statements that the attorney
was maintaining the trust account records required by SCR 20:1.15(e),
the attorney violated SCR 20:1.15(g).
The reprimand was conditioned on the attorney attending a trust
account management seminar, followed by six months of OLR supervision of
the attorney's trust account records. The attorney had no prior
disciplinary history, and there was no harm to any client.
Failure to Provide Competent Representation and to Promptly Return
File
Violations of SCR 20:1.1; 20:1.16(d)
Plaintiffs in a civil case won money damages against defendants who
had caused damage to the plaintiffs' land. When the plaintiffs filed a
post-judgment motion, the defendants fired their counsel and hired a new
attorney.
The new attorney failed to provide competent representation to the
clients, contrary to SCR 20:1.1. First, the new attorney moved to
continue a pending motion hearing because the clients would be
unavailable, but the attorney did not inform the court of his own
unavailability. The attorney failed to arrange for another attorney to
appear on the clients' behalf. Consequently, no one attended the hearing
on the clients' behalf, and the court denied the motion for a
continuance.
Second, the attorney filed motions for relief from judgment and for
an order granting an injunction, and the court found the motions to be
frivolous. Third, the attorney filed an appeal but only indirectly
referred to the statute on which he sought to base relief. The attorney
also brought a motion for ineffective assistance of prior counsel,
although that claim is available only in criminal law. The court of
appeals found both the attorney's motions and the appeal frivolous, and
ordered the attorney to personally pay the plaintiffs' attorney
fees.
The attorney also violated SCR 20:1.16(d) by failing to return the
file to the clients after they requested it. The attorney attempted to
charge the clients to have the file copied. The attorney returned the
original file to the clients after the OLR's investigation.
Failure to Communicate; Failure to Provide Competent
Representation
Violations of SCR 20:1.4(a), (b); 20:1.1
A husband and wife hired a lawyer to assist them in defense of a
foreclosure action against them. The couple was referred to the lawyer
by a man they consulted regarding the foreclosure. The man, who was not
a lawyer and had no formal training in foreclosure or bankruptcy,
advertised in a local circular, offering advice to people with financial
problems. The couple met with the man twice and paid him $300. Upon
referring the couple to the lawyer, the man transferred $100 of the $300
to the lawyer.
The lawyer spoke with the couple on the telephone and agreed to
monitor the foreclosure action. The lawyer did not meet in person with
the clients and did not discuss with them other options they might
consider. Shortly after the couple was referred to him, the lawyer filed
a notice of retainer in the foreclosure but did not file an answer to
the foreclosure complaint.
Several months later, the lender filed an affidavit of default,
proposed findings of fact, conclusions of law and judgment, and other
documents. The lender then filed a notice of motion and motion for
judgment of foreclosure. The lender mailed copies of all the documents
to the lawyer. The lawyer did not forward copies to the clients. Hearing
no objection, the court entered a default judgment against the couple.
The lawyer did not notify the clients of the judgment.
The lawyer did not speak with the clients until 10 months later. At
that time, the clients contacted the lawyer when a realtor they hired to
list their property told them that the home had been sold in the
foreclosure action. A sheriff's sale had been held, but the lawyer
denied receiving notice of the sale until the lender applied for
confirmation of the sale in documents filed with the court.
The confirmation hearing was scheduled, but the lawyer did not
receive notice of it until the day before the hearing. The lawyer
objected to the untimely notice, and the court adjourned the
confirmation hearing. The clients hired other counsel and immediately
filed for bankruptcy, which resulted in a stay of the foreclosure. The
stay was lifted four months later and the sheriff's sale was confirmed
two months after the stay was lifted.
By failing to provide the clients with copies of the default and
judgment documents filed by the lender, the lawyer failed to keep the
clients reasonably informed about the status of the foreclosure, in
violation of SCR 20:1.4(a).
By failing to discuss or explore the clients' legal options, the
lawyer failed to explain the matter to the extent reasonably necessary
to permit the clients to make informed decisions regarding the
foreclosure and failed to undertake the preparation necessary to provide
competent representation. This conduct violated SCR 20:1.4(b) and
20:1.1.
This reprimand was conditioned on the lawyer attending CLE seminars
addressing law office management and legal ethics.
Neglect; Failure to Properly Communicate with Client
Violations of SCR 20:1.3; SCR 20:1.4(a)
A man was sentenced to eight years in prison after his probation was
revoked. The State Public Defender (SPD) appointed an attorney to
represent him. During their discussions, the attorney and the client
adopted the strategy of waiting to file a motion for relief until the
client had served two years of the sentence and participated in a
rehabilitation program.
Consistent with the course of action adopted, there was no
communication between the attorney and the client for almost a year.
Then the client wrote to the attorney, asking for information regarding
the status of the motion for relief. After receiving no response, the
client wrote to the SPD. The client's attorney in another matter also
wrote to the SPD-appointed attorney and relayed the client's request for
contact. The client again wrote to the SPD. An attorney from the SPD
office called the attorney, who said he would contact the client, file
something on the case shortly, and notify the SPD of the action
taken.
After several months, the client again wrote to the attorney and,
among other things, asked for a copy of the transcripts from the case.
Four months later, after receiving no response from the attorney, the
client filed a grievance. The attorney sent a copy of the transcript to
the client more than a year after receiving the client's request.
Although the attorney had told the SPD that he would file a motion on
the case, he failed to file one.
The attorney was privately reprimanded by consent for violating SCR
20:1.3, which states a "lawyer shall act with reasonable diligence and
promptness in representing a client," by failing to promptly file the
motion; and SCR 20:1.4(a), which states a "lawyer shall keep a client
reasonably informed about the status of a matter and promptly comply
with reasonable requests for information," by failing to respond to the
client's requests to contact him and to provide requested
information.
Failure to Adequately Communicate Basis or Rate of Fee; Failure to
Maintain Client Trust Account Records; Failure to Timely Provide
Client's Case File to Successor Counsel
Violations of SCR 20:1.5(b); 20:1.15(e); 20:1.16(d)
An attorney continued to represent a criminal defendant after the
attorney left the law firm at which he had first undertaken the
representation. While the attorney was at the law firm, the client had
been charged on an hourly basis, and advance fees were deposited to the
firm's client trust account. When the attorney departed, the firm issued
a trust account check to the attorney for approximately $1,300 for the
remaining amount the client had in the firm's account.
At about this same time, the attorney asked for and received another
$4,000 payment from the client. The attorney asserted that it had been
agreed that the $4,000, plus the $1,300 released from the firm's trust
account, would constitute a flat fee for concluding the criminal
representation. The client believed he would be entitled to a refund if
the matter did not go to trial. The client entered into a plea agreement
immediately before trial.
The attorney is unable to establish whether he deposited either the
$1,300 trust account check or the $4,000 fee payment into a client trust
account. The attorney asserts that he opened a trust account for the
brief time he was in solo practice before joining another firm, but
states that after several subsequent moves the records have been lost
and acknowledges he may have simply cashed both checks for his fees.
The client made no immediate request for a refund. The client stated
that he believed that the attorney would be doing post-conviction work
for him to which the fees would be applied. In fact, the attorney did no
post-conviction work and the client eventually retained new counsel. The
client then sought to obtain his file and a refund but was unable to
locate the attorney, who had since left the second law firm. A private
detective was hired to locate the attorney. After the attorney was
found, he failed to follow through on several promises to provide the
file until he was personally confronted by the private detective. The
attorney did not refund any fee.
The attorney violated SCR 20:1.5(b) by failing to adequately
communicate to his client the new basis or rate of his fee after leaving
the first law firm; SCR 20:1.15(e), by failing to maintain any trust
account records that would show whether the client's checks were
deposited to a client trust account during the attorney's brief period
of solo practice; and SCR 20:1.16(d), by failing to timely provide the
client's case file to the successor counsel. The attorney had one prior
private reprimand.
Lack of Diligence; Failure to Communicate Basis or Rate of Fee;
Failure to Cooperate with Investigation in Probate Matter
Violations of SCR 20:1.3; 20:1.5(b); 22.03(2), (6)
An attorney was retained to represent a woman as the personal
representative of her aunt's estate. The attorney admits he never
communicated the basis or rate of his fee to the client.
About three months later, the attorney filed a petition for special
administration naming the client as the special administrator to sell
real estate owned by the client's aunt. The court granted the petition,
and the property was sold.
The attorney did no further work on the estate and did not
communicate with his client for 13 months. He then advised the client
that he would schedule a court hearing within the next three weeks.
However, the attorney never scheduled the hearing and failed to further
communicate with the client. Six months later, the client telephoned the
attorney but the attorney did not return her call.
The next month, a beneficiary filed a grievance with the OLR. At that
time, the attorney had not even filed a petition to initiate probate
proceedings. The following month, the attorney told OLR staff that he
would communicate with the client to complete the administration of her
aunt's estate. The attorney later advised OLR staff that he had set up a
meeting with the client and that the meeting had taken place. However,
he had neither communicated with the client to arrange a meeting nor met
with the client.
OLR staff subsequently wrote to the attorney. The attorney responded
only after being personally served.
By failing to initiate probate proceedings for the estate of the
client's aunt for more than two years, the attorney failed to act with
reasonable diligence and promptness in representing the client, in
violation of SCR 20:1.3. By failing to advise the client the basis of
his fee, the attorney failed to communicate to a client the basis or
rate of the fee before or within a reasonable time after commencing the
representation, in violation of SCR 20:1.5(b). By misrepresenting to the
OLR that he had set up a meeting with the client and then subsequently
misrepresenting to the OLR that he had met with the client, the attorney
made misrepresentations to OLR staff in its investigation, in violation
of SCR 22.03(6). Additionally, by failing to respond to the grievance
until he was personally served, the attorney failed to disclose fully
and fairly in a written response all facts and circumstances concerning
the alleged misconduct within 20 days after being served by ordinary
mail, in violation of SCR 22.03(2).
Lack of Diligence; Failure to Communicate with Client
Violations of SCR 20:1.3; 20:1.4(a)
An attorney represented a couple regarding a dispute with a
contractor. The attorney effectively represented the clients for the
first six months and obtained the replacement of defectively-installed
appliances. The attorney then drafted and sent to the clients for their
review a letter outlining further claims. The letter asked the
contractor to present the claims to its insurer and stated that the
clients were prepared to file a civil action if the claims were not
resolved. The clients almost immediately responded to the attorney with
a few minor proposed changes to the letter. The clients believed that
the letter would thereafter be sent. It was not, and the attorney
acknowledged that she also failed to return subsequent phone calls from
the clients.
In her response to the clients' grievance, the attorney indicated she
had concern about a $25 discrepancy in the revisions sent by the
clients. The attorney asserted that she never told the clients about
that concern because one of the clients had a heart condition.
The attorney was privately reprimanded for failing to act with
reasonable diligence and promptness in pursuing the clients' claims,
contrary to SCR 20:1.3, and for failing to adequately communicate with
the client, contrary to SCR 20:1.4(a). The attorney had no prior
discipline.
Lack of Diligence; Failure to Communicate with Client; Failure to
Cooperate with OLR
Violations of SCR 20:1.3; 20:1.4(b); 22.03
An attorney represented a Wisconsin resident who was injured in Iowa
while working for a Minnesota employer. The attorney did little work on
the case and failed to discuss with the client the potential relief
available in the various jurisdictions, contrary to SCR 20:1.3 and
20:1.4(b). The three-year statute of limitation expired in Iowa without
the attorney commencing any action or obtaining a decision from the
client that the action would be pursued elsewhere. The client eventually
hired another attorney who was able to obtain a settlement in Minnesota.
The attorney did not provide timely responses to OLR requests for a
response regarding the grievance, in violation of SCR 22.03.
The medical records that the attorney eventually presented provided
evidence that the misconduct was directly caused by a medical condition
that rendered the attorney unable to properly attend to the client's
matters and the OLR investigation. The attorney had a prior public
reprimand.
Wisconsin Lawyer