author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Joe E. Kremkoski, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Joe E. Kremkoski, Respondent.
    Supreme Court

      No. 03-2123-D.

      Decided December 21, 2004.

    2004 WI 150
    (Also reported in 690 N.W.2d 430.)
   PER CURIAM.

¶ 1. We review the referee's report, findings of fact, and conclusions of law, based on the parties' comprehensive stipulation that Attorney Joe E. Kremkoski committed five counts of professional misconduct as alleged by the Office of Lawyer Regulation (OLR) in the complaint it filed in this court on August 12, 2003. The referee recommended that a private reprimand be issued as a sanction for this misconduct. After reviewing the parties' responses to this court's order to show cause why a public reprimand should not be imposed, we reject the referee's recommendation and publicly reprimand Attorney Kremko-ski for his professional misconduct. We accept the referee's recommendation that Attorney Kremkoski pay all the costs related to this disciplinary proceeding now totaling $4116.33. Also, as the referee recommended, we impose certain conditions upon Attorney Kremkoski's license to practice law in this state.

¶ 2. Joe E. Kremkoski was admitted to practice law in this state on May 18, 1976, and practices in Racine. Kremkoski's prior disciplinary history consists of a 1997 consensual private reprimand.

¶ 3. On August 12, 2003, the OLR filed a complaint in this court against Kremkoski alleging five counts of professional misconduct. In general, the complaint alleged misconduct consisting of Kremkoski representing a client in the same or a substantially related matter in which that person's interests were materially adverse to the interests of a former client; failing to hold money in trust; failing, upon termination of representation, to refund an unearned advance payment of fees; failing- to act with reasonable diligence and promptness in representing a client; and failing to keep a client reasonably informed about the status of a matter and comply with reasonable requests for information.

¶ 4. This court appointed Attorney Dennis J. Flynn to act as referee in this matter. After a public hearing was scheduled by the referee, the parties entered into a comprehensive stipulation by which Attorney Kremkoski admitted to the five counts of professional misconduct as alleged by the OLR's complaint. More specifically, Attorney Kremkoski has now stipulated to the following facts and admitted committing the following counts of misconduct.

COUNTS 1 THROUGH 3

¶ 5. In August 2000 Kremkoski represented C.S. and filed a petition on C.S.'s behalf seeking a domestic injunction against B.V That injunction was granted and B.V was barred from contacting C.S. for a period of two years.

¶ 6. In May 2001 B.V asked Kremkoski to represent him on "a couple of misdemeanors"; Kremkoski agreed to do so for a fee of $500. One of the misdemeanor counts against B.V included an allegation that he had violated the domestic abuse injunction Kremko-ski had obtained for C.S. nine months earlier.

¶ 7. Two days after B.V's initial appearance on the misdemeanor counts, Kremkoski appeared on B.V's behalf at his initial appearance on a four-count felony complaint that had been filed. Kremkoski informed B.V that due to the nature of the felony counts, Kremkoski required an additional "nonrefundable" retainer of $1500. Kremkoski also informed B.V that Kremkoski's hourly fee was $150. There were, however, no written fee agreements with respect to either the $500 B.V had paid Kremkoski for the misdemeanor representation or for the additional $1500 on the felony matters. B.V subsequently paid the $1500 in two installments of $750 each by checks dated May 23, 2001, and June 4, 2001. Kremkoski, however, did not deposit those checks into his client trust account.

¶ 8. On June 27, 2001, Kremkoski appeared on behalf of B.V at an initial appearance on two new cases in Racine county both of which involved allegations of B.V's violation of the domestic abuse injunction Krem-koski had previously obtained for C.S., as well as a bail jumping count. Kremkoski, however, had not obtained C.S.'s written consent prior to representing B.V in these criminal cases.

¶ 9. C.S. later informed the assistant district attorney handling the cases about Kremkoski's prior representation of C.S. in obtaining the domestic abuse injunction that B.V was charged with violating. The assistant district attorney notified the circuit court and subsequently Kremkoski withdrew from representing B.V in the felony and misdemeanor matters.

¶ 10. Kremkoski's office records reflect that he worked 6.1 hours on B.V's criminal matters; accordingly, at Kremkoski's quoted $150 per hour fee rate, he had earned fees totaling $915. When B.V subsequently asked Kremkoski if he would refund any of the $1500 retainer B.V had paid, Kremkoski told B.V that the fee was nonrefundable.

¶ 11. In November of 2001, after Kremkoski had withdrawn from representing B.V in the earlier criminal cases, Kremkoski represented B.V in other legal matters. When B.V was released from jail in October 2001 he again asked Kremkoski if he would refund any of the $1500 fee previously paid and Kremkoski responded that he would not do so but that B.V should "... not worry about the fees in his other legal matters."

¶ 12. This course of conduct, to which Kremkoski has now stipulated, led to the following three misconduct counts.

• Count One: By representing B.V in criminal matters that included B.V's alleged violations of a domestic abuse restraining order which Krem-koski previously obtained on behalf of a former client, Kremkoski represented another person in the same or a substantially related matter in which that person's interests were materially adverse to the interests of the former client, without obtaining the former client's consent in writing after consultation, in violation of SCR 20:1.9(a).
• Count Two: By failing to deposit in his trust account two advance payments for fees in a criminal matter, Kremkoski failed to hold in trust, separate from his own property, an advance fee, in violation of SCR 20:1.15(a).
• Count Three: By failing to return any unearned portion of the $1500 advance fee to B.V upon termination of Kremkoski's representation of B.V in the criminal matters, Kremkoski, upon termination of representation, failed to take steps to the extent reasonably practicable to protect a client's interests, such as refunding any advance payment of fee that has not been earned, in violation of SCR 20:1.16(d).

COUNTS FOUR AND FIVE

¶ 13. B.W retained Kremkoski to represent her in her divorce action; the divorce was granted on April 3, 2001, and the judgment was filed on April 12, 2001. As part of the property division, B.W. was awarded the marital home; this required a transfer of her former husband's interest by quitclaim deed which Kremkoski was responsible for drafting. Kremkoski brought with him to the divorce hearing that was held on April 3, 2001, a quitclaim deed he had drafted for BW's former husband to sign; however, that quitclaim deed contained an error and therefore could not be signed until it was redrafted. Kremkoski told his client B W that he would redraft the document but despite her repeated telephone calls after the divorce hearing, he failed to do so. Kremkoski also did not respond to many of the phone calls. Because B.W needed the quitclaim deed in order to refinance her home and take advantage of the then available interest rate, she had to obtain someone else to redraft the deed for her. B.W. then obtained her former husband's signature on the redrafted quitclaim deed.

¶ 14. In addition, the divorce judgment provided that B.W.'s former husband was to transfer to her the sum of $10,500 by a Qualified Domestic Relations Order (QDRO) which Kremkoski was to draft. B.W. did not have access to those funds, held in her former husband's 401k account, until completion of the QDRO.

¶ 15. From April 3, 2001, through March 11, 2002, B.W frequently telephoned Kremkoski urging him to complete the QDRO. Kremkoski returned only one of B.W.'s phone calls and then spoke to a person other that B.W Kremkoski finally called the 401k plan administrator in December of 2001 and prepared a QDRO which he forwarded to the plan administrator. The plan administrator, however, rejected that QDRO in March 2002.

¶ 16. Following the commencement of the OLR investigation in May of 2002, Kremkoski prepared a new QDRO and sent it to the plan administrator on July 17, 2002. That QDRO was accepted in August of 2002 and was ultimately accepted by the divorce court on September 27, 2002.

¶ 17. This course of conduct, to which Kremkoski has now stipulated, led to the following two counts of misconduct.

'• Count Four: By failing to redraft the quitclaim deed for B.W and by failing to timely complete B.W’s QDRO, Kremkoski failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
• Count Five: By failing to respond to B.W’s telephone calls regarding the status of her quitclaim deed and her QDRO, Kremkoski failed to keep a client reasonably informed about the status of a matter and comply with reasonable requests for information, in violation of SCR 20:1.4(a).

¶ 18. Because Kremkoski stipulated to the facts as alleged in the OLR's complaint, the dispute before the referee focused on the discipline to be recommended for Kremkoski's admitted misconduct regarding these five counts. The OLR maintained that a public reprimand should be imposed as a sanction because the five counts involve both client neglect and conflicts of interest. According to the OLR a public reprimand would be consistent with numerous prior cases in which public reprimands have been imposed for similar types of misconduct involving conflicts of interest and client neglect. The OLR also pointed out that the American Bar Association's Standard for Imposing Lawyer Sanctions — 1991 Edition, suggests that a public reprimand is an appropriate sanction for this type of misconduct and that according to the ABA standards, only cases involving "minor misconduct" — i.e., when there is little or no injury to a client, the public, the legal system, or the profession, and little likelihood of repetition by the lawyer, that a private reprimand is appropriate.

¶ 19. Furthermore, the OLR asserted that a public reprimand was appropriate in this case because Kremkoski breached a fundamental duty to his client —the duty of loyalty — by representing B.V after having earlier represented C.S. in obtaining a domestic abuse injunction against B.V The OLR noted that that conduct carried a significant risk that Kremkoski might reveal confidential information that C.S. had provided to him during the time he represented her.

¶ 20. In addition, the OLR asserted that Kremko-ski had breached his duty to B.V by failing to place the $1500 retainer he had received in a trust account and then in failing to return any of the retainer after only performing 6.1 hours of legal work for B.V The OLR asserted that the remaining amount of that retainer should have been immediately returned to B.V upon termination of Kremkoski's representation.

¶ 21. Similarly, the OLR maintained that Krem-koski had breached his duty to his divorce client, B.W, by failing to timely draft and file the quitclaim deed and the QDRO, and by failing to respond to her numerous telephone calls regarding the status of the matter. The OLR observed that although Kremkoski finally redrafted the QDRO, that had occurred only after he had been contacted by the OLR about B.W's grievance.

¶ 22. Finally, the OLR argued that Kremkoski's misconduct in this case was aggravated by the fact that he had previously been disciplined for neglect of a client matter. According to the OLR, a public reprimand was necessary to emphasize to Kremkoski the serious nature of his misconduct and to deter him and other attorneys from engaging in similar misconduct in the future.

¶ 23. Kremkoski, on the other hand, urged the referee to recommend a private reprimand as an appropriate sanction. Kremkoski emphasized certain facts including the fact that when he had agreed to represent B.V, Kremkoski thought the focus of the criminal charges would be on the felony matters, not on B.Vs alleged violation of the domestic abuse injunction which Kremkoski believed that C.S. had attempted to rescind after she and B.V had reconciled. Kremkoski also pointed out that he had informed B.V that the $1500 retainer was "nonrefundable" and that, in any event, that retainer amounted to fees that were earned upon payment.

¶ 24. Kremkoski also identified certain mitigating factors; although he conceded these factors would not necessarily excuse his misconduct, he believed they would explain the circumstances surrounding it. For example, he pointed out that during the time, period alleged by the OLR for this misconduct, Kremkoski and his wife were caring for his mother-in-law who lived with them until she died in September 2001. Also during that same period, Kremkoski and his wife were caring for his wife's aunt who had Alzheimer's disease. And finally, Kremkoski pointed out that in October 2001, his son was called to active duty with the Air National Guard and served in combat in Afghanistan for four months.

¶ 25. The referee was persuaded by Kremkoski's claim that he was under stress at the critical time this misconduct occurred. The referee noted that although Kremkoski was not claiming that he was suffering from a mental illness, he was claiming that the number of stressors he faced during this period of time should be considered as mitigation of his conduct. The referee agreed that the evidence was relevant and concluded that there was no need for expert testimony to establish a causal connection between these stressful events and Kremkoski's actions.

¶ 26. Accordingly, the referee recommended that a private reprimand would be an appropriate sanction in this case because it "... appropriately responds to the misconduct of this case and also gives recognition to the mitigating factors that are unique to this matter."

¶ 27. In addition to the private reprimand, the referee recommended that Kremkoski be ordered to obtain at least eight hours of continuing legal education focusing on ethics education each year for the next three years. The referee suggested that special emphasis should also be on CLE seminars relating to the use and management of client trust accounts, reasonably responding to contacts from clients regarding the status of a case, conflicts of interest, utilization of written retainer agreements, and the timely performance of legal services by counsel. In addition, the referee recommended that Kremkoski should inform himself about bar programs providing help to lawyers who are "experiencing significant, non-law-practice-related stress."

¶ 28. Finally, the referee recommended that Kremkoski be required to pay all the costs related to this disciplinary proceeding which now total $4116.33.

¶ 29. As noted, this court ordered Kremkoski to show cause why a public reprimand should not be imposed instead of the private reprimand recommended by the referee. Both Kremkoski and the OLR have submitted responses basically reiterating their arguments before the referee. Kremkoski again urges this court to impose a private reprimand, and the OLR again advocates a public reprimand as a sanction.

¶ 30. After reviewing the parties' arguments and respective positions, as well as the referee's report and analysis, we conclude — especially in light of the fact that Kremkoski previously received a private reprimand in 1997 for conduct involving the neglect of a client matter — that a public reprimand is warranted in this case in order to emphasize the serious nature of Kremkoski's misconduct and to deter him and other attorneys from engaging in similar misconduct in the future. Although not unsympathetic to the stress Kremkoski was experiencing during the relevant periods, the court thinks that such stress does not explain Kremkoski's failure to appreciate the serious conflict of interest he faced by representing both C.S. and B.V in the situation described in the OLR complaint.

¶ 31. Under all the circumstances, we conclude that Joe E. Kremkoski should be publicly reprimanded for his five counts of misconduct as committed in this case. We further conclude, as the referee recommended, that Kremkoski obtain continuing legal education credits focusing on the specific areas suggested by the referee, including at least eight hours per year for the next three years of continuing legal education credits dealing with ethics. In addition, we conclude that Kremkoski must pay all costs related to this disciplinary proceeding now totaling $4116.33.

¶ 32. IT IS ORDERED that Joe E. Kremkoski is publicly reprimanded for professional misconduct.

¶ 33. IT IS FURTHER ORDERED that Joe E. Kremkoski must obtain eight hours of continuing legal education each year for the next three years focusing on ethics and that during that same period, he shall attend continuing legal education seminars emphasizing the following: the use and management of client trust accounts; the duties of attorneys to reasonably respond to client contacts regarding the status of cases; the avoidance of conflicts of interest; the utilization of written retainer agreements; and the timely performance of legal services by counsel.

¶ 34. IT IS FURTHER ORDERED that within 60 days of the date of this order Joe E. Kremkoski pay to the Office of Lawyer Regulation all the costs of this proceeding providing that if such costs are not paid within the time specified and absent a showing to the court of his inability to pay the costs within that time, the license of Joe E. Kremkoski to practice law in Wisconsin shall be suspended until further order of this court.

       Neither Attorney Kremkoski nor the OLR has appealed from the referee's report and recommendation and accordingly, this court's review is pursuant to SCR 22.17(2) which provides, in pertinent part: "(2) If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions and remand the matter to the referee for additional findings; and determine and impose appropriate discipline ...." For the reasons explained in this opinion, we conclude that a public, rather than private reprimand as recommended by the referee, is the appropriate discipline to be imposed in this situation.

       That 1997 consensual private reprimand was for Kremkoski's misconduct consisting of failing to file a complaint when he knew the statute of limitations would soon expire; failing to inform a client that the statute of limitations had expired; and making repeated misrepresentations about receiving a $100 payment from the client.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Paul M. Kasprowicz, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Paul M. Kasprowicz, Respondent.
    Supreme Court

      No. 03-2844-D.

      Decided December 21, 2004.

    2004 WI 151
    (Also reported in 690 N.W.2d 13.)
   PER CURIAM.

¶ 1. We review the referee's report and recommendation that Attorney Paul M. Kasprow-icz be publicly reprimanded for having committed 16 counts of professional misconduct involving six separate client matters as alleged in the complaint filed by the Office of Lawyer Regulation (OLR) in this court on October 23, 2003. Noting that Kasprowicz had admitted to most of the misconduct counts in his answer or at the public hearing, the referee concluded that his misconduct had been proven by clear and convincing evidence. The primary dispute before the referee concerned the appropriate sanction to be recommended for Kasprowicz' multiple counts of misconduct: The OLR sought a 60-day suspension of Kasprowicz' license to practice law, while Kasprowicz urged the referee to recommend a public reprimand. The referee appointed in this matter, Attorney Earn M. Peterson, agreed with Kasprowicz and has recommended to this court that Kasprowicz receive a public reprimand for his professional misconduct.

¶ 2. Neither the OLR nor Kasprowicz have appealed from the referee's report and recommendation; thus, this court's review proceeds pursuant to SCR 22.17(2). We conclude the referee's findings of fact are supported by clear and convincing evidence in the record and accordingly, we adopt those findings as well as the referee's conclusions of law that Kasprowicz committed all 16 counts of misconduct as alleged in the OLR complaint. We also accept the referee's recommendation and publicly reprimand Attorney Kasprowicz for his misconduct.

¶ 3. We also direct that Attorney Kasprowicz pay the OLR the costs accrued in this disciplinary proceeding, now totaling $5760.16.

¶ 4. Respondent, Attorney Paul Kasprowicz, was admitted to practice law in this state in 1986 and has practiced as a sole practitioner in Waukesha county. He has never before been the subject of a disciplinary proceeding. Because there has been no appeal and there is no dispute over the facts, the allegations of the OLR complaint and the referee's findings will be only briefly discussed.

COUNTS 1 THROUGH 6 — CLIENT K.M.

¶ 5. K.M. retained Kasprowicz on December 14, 1998, to help in the probate of her mother's estate. Kasprowicz and K.M. agreed that his fee would be based on a percentage of the estate.

¶ 6. On January 8, 1999, Kasprowicz filed an application for informal probate and K.M. was appointed personal representative. Subsequently, on July 13, 1999, the register in probate filed a "Notice of Overdue Inventory" because the inventory of the estate had not been filed within six months of the appointment of the personal representative as required by Wis. Stat. § 858.01.

¶ 7. On August 4, 1999, Kasprowicz filed the inventory listing property valued at $417,835.22 as subject to administration. The inventory, however, improperly included an IRA and fife insurance policy that were held by the decedent's living trust, a document Kasprowicz had drafted for the decedent in 1992. The beneficiary form on the decedent's IRA designated her trust, not her estate, as beneficiary.

¶ 8. The inventory also incorrectly listed the decedent as having a one-half ownership in real estate in Monroe county, when in fact, she had only a one-quarter ownership in that property.

¶ 9. The value of the property Kasprowicz had erroneously included in the decedent's estate exceeded $275,000.

¶ 10. After the inventory, Kasprowicz filed no additional documents in the estate and failed to close the estate within 18 months. When orders to show cause were subsequently issued in October 2000 regarding his failure to close the estate, Kasprowicz appeared and asked that the file be transferred to another attorney, Attorney George Love. Kasprowicz stated at the order to show cause hearing that he would pay all of Attorney Love's fees incurred in closing the estate.

¶ 11. That order to show cause hearing had been requested by K.M. because Kasprowicz had been unresponsive to her questions about settling the estate. Kasprowicz had moved his office without informing K.M. of the new location and her numerous attempts to discuss the status of her mother's estate with Kasprow-icz had been unsuccessful. Ultimately, Kasprowicz left a voicemail message for K.M. stating that he was taking a leave of absence from his law practice.

¶ 12. After taking over the estate as successor counsel, Attorney Love asked Kasprowicz several times to turn over his file on the estate; Kasprowicz finally did so over four months later.

¶ 13. During the time he handled the estate, Kasprowicz failed to file a fiduciary income tax return for the estate and the trust. That failure resulted in the assessment of $4100 in interest and penalties.

¶ 14. After K.M. filed a grievance with the OLR about Kasprowicz' conduct, the OLR began its investigation; Kasprowicz, however, failed to timely respond to the OLR's investigative efforts.

¶ 15. Ultimately, however, Kasprowicz paid over $11,000 which included all of Attorney Love's fees, a return to the client of one-half of Kasprowicz' fees, and all of the penalties and interest imposed by the IRS as the result of the late filing of the estate's tax returns.

¶ 16. This course of conduct, as alleged in the OLR complaint and which the referee found had been proven by clear and convincing evidence, led to the following six counts of misconduct against Kasprowicz:

• Count 1. By improperly including an IRA and life insurance policy in the estate's inventory, Kasprowicz failed to represent a client with the legal knowledge, skills, thoroughness, and preparation reasonably necessary for the representation, in violation of SCR 20:1.1.
• Count 2. By failing to file the estate's inventory within six months as required by Wis. Stat. § 858.01, by failing to close the estate within 18 months, as required by Wis. Stat. § 863.35, without filing a request for an extension of time to close the estate, and by failing to file fiduciary income tax returns for the estate and trust, which resulted in approximately $4100 in interest and penalties, Kasprowicz failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
• Count 3. By failing to respond to KM.'s attempts to contact him regarding the status of the estate, Kasprowicz failed to promptly comply with a client's numerous requests for information, in violation of SCR 20:1.4(a).
• Count 4. By failing to turn K.M.'s file over to her new counsel for approximately four and one-half months after a request was made for the file, Kasprowicz failed to take steps to the extent reasonably practicable to protect a client's interest, in violation of SCR 20:1.16(d).
• Count 5. By charging K.M. a percentage of the estate's value for his representation in the matter, Kasprowicz violated a statute [Wis. Stat. § 851.40(2)(e)] and supreme court decision [In re Disciplinary Proceedings Against Sylvan, 202 Wis. 2d 123, 549 N.W.2d 249 (1996)] regulating the conduct of lawyers, in violation of SCR 20:8.4(1).
• Count 6. By failing to timely respond to OLR staffs investigative letters and by failing to provide relevant information during the course of an investigation, Kasprowicz failed to timely disclose all facts and circumstances pertaining to the grievance and failed to timely answer questions or furnish documents, in violation of SCR 22.03(2), constituting misconduct, pursuant to SCR 20:8.4(1).

COUNT SEVEN — CLIENT R.K.

¶ 17. In October 1999 R.K. retained Kasprowicz to handle the probate of R.K's mother's estate. In October 2001 R.K. filed a grievance with the OLR asserting that despite multiple orders to show cause issued by the probate court, the estate had not been closed.

¶ 18. The OLR staff mailed a copy of that grievance to Kasprowicz and informed him that pursuant to SCR 22.03(2), he was required to provide a written response disclosing all facts and circumstances pertaining to the alleged misconduct on or before November 15, 2001. Kasprowicz failed to respond to that letter.

¶ 19. Kasprowicz also failed to respond to a second investigative letter sent by the OLR staff by certified mail on November 28, 2001. Likewise, although Kasprowicz had signed a return receipt for a third letter from the OLR on December 14, 2001, he did not respond to that letter either.

¶ 20. Subsequently, on January 28, 2002, the OLR filed a motion in this court pursuant to SCR 22.03(4) requesting that Kasprowicz be ordered to show cause why his license should not be suspended for his willful failure to cooperate with the OLR in its investigation of this grievance. After Kasprowicz had been served with a copy of that motion, he finally on January 30, 2002, submitted an initial response to the R.K. grievance; as a result, the OLR withdrew its request for a suspension of Kasprowicz' license for his failure to cooperate.

¶ 21. On June 18, 2002, OLR staff sent a letter to Kasprowicz requesting a supplemental response to some additional investigative questions. He was asked to submit his response by July 1, 2002. Again, Kasprow-icz failed to respond, and he likewise failed to respond to a second letter sent to him by OLR staff by certified mail. On July 15, 2002, a third OLR investigative letter, which requested a response by July 23, 2002, was personally served on Kasprowicz. On that date, Kasprowicz finally hand-delivered a response to the OLR and met with OLR staff. At that meeting, OLR staff requested additional information by August 19, 2002, and Kasprowicz was sent a letter from the OLR on July 24, 2002, confirming that request. Kasprowicz, however, again failed to respond and supply the additional information by the specified date.

¶ 22. Another letter from the OLR personally served on Kasprowicz on August 21, 2002, requested a response from him by August 30, 2002; Kasprowicz faxed his response to OLR staff on August 31, 2002.

¶ 23. On September 5, 2002, OLR staff sent Kasprowicz another letter requesting additional information by October 4, 2002; again, Kasprowicz did not respond or supply the requested information.

¶ 24. This course of conduct, as alleged in the OLR complaint and which the referee found had been proven by clear and convincing evidence, led to the following count of misconduct against Kasprowicz:

• Count 7. By failing to respond to OLR staffs letters of October 23, 2001, November 28, 2001, and December 14,2001, until after the OLR filed an order to show cause on January 28, 2002, requesting the temporary suspension of Kasprowicz1 license to practice law, and by failing to respond staffs letters of June 18, 2002, and July 2, 2002, until after being personally served with a third request, and by failing to respond to staffs letters of July 24, 2002, until after being personally served with a second request, Kasprowicz failed to timely provide relevant information during the course of the investigation, in violation of SCR 22.03(2) and SCR 22.03(6), constituting misconduct, pursuant to SCR 20:8.4(f).

COUNTS 8 THROUGH 10 — CLIENT S.M.

¶ 25. Kasprowicz prepared tax returns for S.M. for the years 1994 through 1997, and again for the year 1999. In February 2001 the Wisconsin Department of Revenue (DOR) placed a lien on S.M.'s personal residence for back taxes. S.M. contacted Kasprowicz regarding the tax lien and signed a power of attorney allowing Kasprowicz to deal directly with the DOR regarding S.M.'s taxes.

¶ 26. During the next eight months, S.M. tried to contact Kasprowicz several times to discuss the status of the matter. Kasprowicz failed to respond except to send S.M. a copy of the letter Kasprowicz had mailed to the DOR on June 20, 2001. During the eight months that Kasprowicz represented S.M. regarding the DOR tax lien, Kasprowicz was unable to resolve the matter.

¶ 27. S.M. subsequently filed a grievance with the OLR on October 18, 2001, noting that the tax lien was still attached to his home and Kasprowicz had not responded to his attempts to contact him. Also, in October 2001, S.M. hired an accountant to deal with the tax lien. The accountant cleared up that matter within a month; the accountant later stated that"... it was no problem to make a few calls and sort out the matter with the DOR auditor."

¶ 28. On December 14, 2001, OLR staff wrote to Kasprowicz requesting a response to S.M.'s grievance by January 8, 2002; Kasprowicz failed to respond.

¶ 29. On January 11, 2002, OLR staff sent additional correspondence to Kasprowicz requesting a response to S.M.'s grievance by January 22, 2002. By letter dated January 23, 2002, Kasprowicz requested án extension of time to respond to S.M.'s grievance and informed the OLR that he had retained an attorney to represent him in the OLR investigation. The request for an extension was granted.

¶ 30. On March 29, April 8, and April 30, 2002, the OLR received copies of letters the attorney sent to Kasprowicz stating that the attorney needed to talk with Kasprowicz as soon as possible regarding S.M.'s grievance and telling Kasprowicz to contact the attorney to schedule a conference to discuss the matter. The final letter from the attorney informed Kasprowicz that he was withdrawing from representing Kasprowicz in the grievance matter.

¶ 31. By letter dated May 7, 2002, OLR staff requested Kasprowicz to respond to S.M.'s grievance no later than May 15, 2002. After being personally served with that letter, Kasprowicz contacted OLR staff and promised to provide a response; again he failed to do so.

¶ 32. On July 23, 2002, Kasprowicz appeared at the OLR office in Milwaukee and stated that he would respond to S.M.'s grievance by August 2, 2002, a date OLR staff later confirmed by letter. Kasprowicz, however, failed to respond as promised. He finally responded on August 30, 2002, after he had been personally served with another follow up letter from OLR staff.

¶ 33. This course of conduct, as asserted in the OLR complaint and which the referee found had been proven by clear and convincing evidence, led to the following three counts of misconduct against Kasprow-icz:

• Count 8. By failing to diligently and promptly pursue removal of the tax lien on his client's home, and by sending only one letter to the Wisconsin Department of Revenue in the matter during an eight-month time span, Kasprowicz failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
• Count 9. By failing to return telephone calls and respond to other attempts of his client to contact him about the matter, Kasprowicz 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.
• Count 10. By failing to respond to multiple OLR staff investigative letters relating to the S.M. grievance, Kasprowicz failed to timely fully and fairly disclose all facts and circumstances pertaining to alleged misconduct, in violation of SCR 22.03(2), constituting misconduct, pursuant to SCR 20:8.4(1).

COUNTS 11 AND 12 — CLIENT N.G.

¶ 34. Kasprowicz represented N.G. in her divorce action and obtained a judgment of divorce on her behalf on February 20, 2002. As the attorney for the moving party, Kasprowicz was to draft and submit proposed findings of fact, conclusions of law, and the judgment within 30 days of the final divorce hearing pursuant to Wis. Stat. § 767.37(1).

¶ 35. Because this proposed draft had not been filed by Kasprowicz, an order to show cause hearing was held on May 24, 2002. Kasprowicz informed the court that he had drafted the paperwork and forwarded it to opposing counsel; opposing counsel finally received the proposed drafts on May 28, 2002. On that same day, the court approved the drafts as to form and returned them to Kasprowicz; Kasprowicz, however, did not file the documents with the court until July 2002.

¶ 36. On June 26, 2002, N.G. filed a grievance about Kasprowicz' conduct with the OLR. The OLR sent Kasprowicz a letter on August 22, 2002, requesting a response to N.G.'s allegations. Kasprowicz submitted a two-paragraph response and a copy of his final bill to N.G.

¶ 37. On September 19, 2002, the OLR requested additional specific information from Kasprowicz relating to N.G.'s grievance, but Kasprowicz failed to respond.

¶ 38. On October 11, 2002, the OLR sent another réquest to Kasprowicz by certified mail which Kasprow-icz signed for; however, he again did not respond.

¶ 39. On December 9, 2002, Kasprowicz was personally served with a request for information regarding the N.G. grievance and finally submitted his written response to the OLR on December 16, 2002.

¶ 40. This course of conduct, as alleged in the OLR complaint and which the referee found to have been proven by clear and convincing evidence, led to the following counts of misconduct against Kasprowicz:

• Count 11. By failing to provide opposing counsel with proposed final paperwork until three months after the final divorce hearing, and by failing to file the paperwork until five months after the final divorce hearing, in violation of Wis. Stat. § 767.37(1), Kasprowicz failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
• Count 12. By failing to timely respond to OLR staffs investigative letters regarding N.G.'s grievance, Kasprowicz failed to provide relevant information during the course of an investigation, in violation of SCR 22.03(6), constituting misconduct, pursuant to SCR 20:8.4(f).

COUNTS 13 AND 14 — CLIENT R.S.

¶ 41. In early 1999 R.S. retained Kasprowicz to represent her in a divorce action. R.S. was granted a divorce on February 15, 2000, but a Qualified Domestic Relation Order (QDRO) was necessary to divide R.S.’s ex-husband's retirement account. After the final hearing, Kasprowicz told R.S. that it would be necessary to hire a third party to prepare the QDRO. R.S. thought Kasprowicz would hire someone to prepare it, but Kasprowicz did nothing and failed to advise R.S. that he was not arranging for someone to prepare the QDRO.

¶ 42. Subsequently, when R.S. attempted to contact Kasprowicz about the QDRO, Kasprowicz failed to respond to her calls. Later, R.S. hired other counsel to prepare the QDRO which was then submitted to the trial court and signed by the court in March of 2003.

¶ 43. After R.S. filed a grievance against Kasprowicz, the OLR sent Kasprowicz a request on October 2, 2002, that he submit a full and complete response to the grievance; Kasprowicz did not reply.

¶ 44. On October 30, 2002, the OLR sent another request to Kasprowicz, this one by certified mail. Although Kasprowicz signed for that letter, he did not respond.

¶ 45. Then, on December 9, 2002, Kasprowicz was personally served with the OLR's request that he respond to the grievance; he finally did so submitting a written response to the OLR on December 23, 2002.

¶ 46. This course of conduct, as alleged in the OLR's complaint and which the referee found to have been proven by clear and convincing evidence, led to the following two counts of misconduct against Kasprowicz:

• Count 13. By failing to follow up on the status of the QDRO, and by failing to ensure the completion of the - division of the marital estate, Kasprowicz failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
• Count 14. By failing to timely fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct, Kasprowicz failed to timely fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct, in violation of SCR 20:03(2), constituting misconduct, pursuant to SCR 20:8.4(f).

COUNTS 15 AND 16 — CLIENT D.H-V

¶ 47. In May 2001 D.H-V retained Kasprowicz to represent her in a child support matter. After Kasprow-icz filed a post-divorce petition on her behalf, the circuit court issued an order to show cause and scheduled a hearing for July 13, 2001. That hearing, however, had to be postponed to November 27, 2001, because of a failure to obtain an affidavit of service with respect to D.H-V's ex-husband.

¶ 48. At that rescheduled November 27, 2001, hearing, D.H-V appeared with Kasprowicz; D.H-V's husband, however, did not appear. The circuit court entered a default judgment in favor of D.H-V ordering an increase in the amount of child support D.H-V would receive; those increased payments were to be retroactive to July 13, 2001. Kasprowicz was directed to determine the arrearages owed by D.H-V's former husband and to incorporate that amount into the court order Kasprowicz was to draft. Kasprowicz did not speak with D.H-V after the November 27, 2001, hearing.

¶ 49. Sometime after that hearing, however, Kasprowicz received a proposed stipulation from the attorney representing D.H-V's former husband. The terms of that stipulation differed from the circuit court's November 27, 2001, order that Kasprowicz was to draft. The proposed stipulation provided for an increase in child support but made it effective November 29, 2001, instead of retroactively to July 13, 2001.

¶ 50. In addition, a wage assignment for the monthly child support had become effective on January 31, 2002, but the stipulation proposed by D.H-V's former husband calculating the arrearages for December 2001 and January 2002 provided that "all other arrearages, and interest accruing therefrom, are hereby waived ...."

¶ 51. The proposed stipulation also provided that her former husband, rather than D.H-V, would be entitled to claim their son as an exemption on tax returns for 2002 and all successive years.

¶ 52. Kasprowicz did not send a copy of the proposed stipulation to D.H-V; instead, he called her and left a voicemail describing the terms of the stipulation and stating that if she did not respond, he would sign it. Kasprowicz never received a response from D.H-V D.H-V claimed she never received the voicemail. In any event, Kasprowicz signed the stipulation on behalf of D.H-V D.H-V first learned of the stipulation and the subsequent order signed by the court in January 2003 when her former husband called and told her that he, not she, was entitled to claim their son as a tax exemption pursuant to the stipulation.

¶ 53. After D.H-V filed a grievance with the OLR, OLR staff sent Kasprowicz letters on June 6, June 26, and July 18, 2003, requesting information and copies of all correspondence in D.H-V's files; Kasprowicz did not provide the requested information. On August 6, 2003, in a telephone conference with OLR staff, Kasprowicz explained he had not submitted the copies of the correspondence in D.H-V's file because there were none. Kasprowicz informed the OLR of this lack of documentation more than two months after the OLR had requested the information.

¶ 54. This course of conduct, as alleged in the OLR complaint and which the referee found to have had been proven by clear and convincing evidence, led to the following two counts of misconduct against Kasprowicz:

• Count 15. By signing a stipulation without consulting with D.H-V about its terms and explaining to her how it was different from the previous court order, Kasprowicz failed to abide by a client's decision concerning the objectives of representation and failed to consult with the client as to the means by which they are to be pursued, in violation of SCR 20:1.2(a).
• Count 16. By failing to notify D.H-V of the stipulation and resultant court order, and by failing to send her copies of those documents, Kasprowicz 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).

¶ 55. After listing her findings of fact and conclusions of law, Referee Peterson discussed the sanction she would recommend for Kasprowicz' misconduct. Balancing the mitigating and aggravating factors, the referee concluded that a public reprimand was the appropriate sanction in this situation. She explained that in the first place, the misconduct, while serious, was not malicious or intentionally deceptive; moreover, at least two of the counts were based on Kasprowicz' apparent misunderstanding of the law. Although the misconduct, occurring over approximately a two-year period, involved at least five clients (and one count of failing to cooperate in the investigation of a grievance filed by a sixth client), the referee concluded that Kasprowicz' primary problem was in failing to act and then avoiding his clients when questioned about that failure.

¶ 56. Disclaiming any attempt to minimize Kasprowicz' failures, the referee additionally pointed out that his conduct was not intended to — and did not — provide him with any monetary gain or benefit. According to the referee, Kasprowicz' avoidance behavior was not the result of any attempt on his part to harm his clients; rather, his behavior was a result of the medical and emotional problems he was experiencing during the two-year period.

¶ 57. Moreover, the referee noted that the harm caused by Kasprowicz' misconduct was generally minor in nature; the only monetary damage suffered involved K.M. when interest and penalties were imposed due to Kasprowicz' failure to file the fiduciary income tax return for the estate and the trust involved in that matter. In any event, the referee further observed that all monetary damages resulting from Kasprowicz' conduct had been voluntarily repaid by him, including his payment of successor counsel fees in the K.M. matter.

¶ 58. Because the referee found that Kasprowicz was sincerely remorseful and obviously embarrassed about the situation, the referee determined that a public reprimand would be an appropriate sanction to remind Kasprowicz of the seriousness of his conduct.

¶ 59. Although the OLR had argued that Kasprowicz' misconduct was intentional, the referee pointed to the analysis of the psychologist who had been hired to evaluate Kasprowicz' ability to practice law and based on that analysis, the referee determined that Kasprowicz had not acted intentionally in a way that was meant to harm his clients; he had not deceived or lied to them, nor had he taken money that was not his. The referee characterized Kasprowicz' conduct as a "failure to act." She said that while that failure to act was frustrating, it did not result in significant harm to his clients.

¶ 60. Furthermore, the referee concluded that there were significant mitigating factors, specifically Kasprowicz' medical condition during the time period in question. The referee wrote:

. . . the testimony indicates that around the year 2000, respondent's health began deteriorating. He gained weight, became lethargic, tired, and was unable to concentrate or focus on work. Respondent himself testified that he had trouble sleeping and concentrating. When he realized that he was having difficulties with the OLR, and several clients, rather than address the situation, [he] avoided the problems, failing to respond to either his clients or the OLR until the last possible moment. Respondent indicated he felt somewhat hopeless, and due to his illness, felt unable to address the problems.
After seeing several doctors and undergoing numerous tests, respondent was finally diagnosed with hyperinsulinism, with a degree of depression as well. As both respondent and his wife testified, as part of his treatment, respondent started a new eating regimen designed to improve his condition. After a few months, respondent's health improved. His energy returned, he became more focused, lost his weight, and, as friends and family indicated, was back to his "old self." He has not had any problems with clients, the OLR or family since his diagnosis and treatment. Respondent appears to have cooperated in these proceedings; he presented himself well throughout the course of this proceeding.
I find the unanimous testimony of respondent, his wife, and close friend, demonstrates that respondent's conduct in avoiding his clients, avoiding the inquiries of the office of lawyer regulation and failing to act in various respects, are a direct result of his illness. In other words, had respondent been healthy, I do not believe he would have acted the way he did in these matters, and this belief is bolstered by the fact that he has not had problems since his treatment began.

¶ 61. After review, we conclude, consistent with prior similar cases such as In re Disciplinary Proceedings Against Theobald, 2004 WI 59, 271 Wis. 2d 690, 679 N.W.2d 804, that a public reprimand is an appropriate sanction for Kasprowicz' misconduct as established in this disciplinary proceeding. We agree with the referee's analysis and observations. We find that the seriousness of Attorney Kasprowicz' misconduct warrants this public reprimand and we direct that Attorney Kasprowicz pay the costs of this disciplinary proceeding now totaling $5760.16.

¶ 62. IT IS ORDERED that Paul M. Kasprowicz is publicly reprimanded for professional misconduct.

¶ 63. IT IS FURTHER ORDERED that within 60 days of the date of this order Paul M. Kasprowicz pay to the Office of Lawyer Regulation all the costs of this proceeding provided that if such costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Paul M. Kasprowicz to practice law in Wisconsin shall be suspended until further order of this court.

       The OLR complaint alleged 16 separate counts of misconduct pertaining to six separate matters but one of the client matters did not allege any misconduct related to that client; rather, the charge focused on Kasprowicz' failure to provide a timely response to OLR's request for information.

       SCR 22.17(2) provides:
      (2) If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       SCR 20:1.1 provides: "Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

       SCR 20:1.3 provides: "Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client."

       SCR 20:1.4(a) provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

       SCR 20:1.16(d) provides:
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       SCR 20:8.4(f) provides: "It is professional misconduct for a lawyer to: (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       SCR 22.03(2) provides:
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.

       SCR 22.03(4) provides:
      (4) If the respondent fails to respond to the request for written response to an allegation of misconduct or fails to cooperate in other respects in an investigation, the director, or a special investigator acting under SCR 22.25, may file á motion with the supreme court requesting that the court order the respondent to show cause why his or her license to practice law should not be suspended for willful failure to respond or cooperate with the investigation. All papers, files, transcripts, communications, and proceedings on the motion shall be confidential and shall remain confidential until the supreme court has issued an order to show cause. The license of an attorney suspended for willful failure to respond or cooperate with an investigation may be reinstated by the supreme court upon a showing of cooperation with the investigation and compliance with the terms of suspension. The director or the special investigator shall file a response in support of or in opposition to the reinstatement within 20 days after the filing of an attorney's request for reinstatement. Upon a showing of good cause, the supreme court may extend the time for filing a response.

       SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

       SCR 20:1.4 provides: "Communication, (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, (b) Á lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

       SCR 20:1.2(a) provides:
      (a) A lawyer shall abide by a cbent's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall inform a cbent of all offers of settlement and abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case or any proceeding that could result in deprivation of bberty, the lawyer shall abide by the cbent's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the cbent wib testify.


text:
    In the Matter of Disciplinary Proceedings Against Bruce B. Jacobson, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent-Cross-Appellant, v. Bruce B. Jacobson, Respondent-Appellant-Cross-Respondent.
    Supreme Court

      No. 02-0931-D.

      Oral argument October 6, 2004.

    Decided December 23, 2004.

    2004 WI 152
    (Also reported in 690 N.W.2d 264.)

      For the respondent-appellant-cross-respondent there were briefs by Terry E. Johnson, C. Paul Snyder and Peterson, Johnson & Murray, S.C., Milwaukee, and oral argument by Terry E. Johnson.

    For the complainant-respondent-cross-appellant there were briefs by Robert G. Krohn and Roethe, Krohn, Pope, McCarthy, Haas & Robinson, LLP, Edger-ton, and oral argument by Robert G. Krohn.

   PER CURIAM.

¶ 1. We review the original and amended findings of fact, conclusions of law, and recommendations of Referee Rose Marie Baron for sanctions, pursuant to SCR 22.17(1). Attorney Bruce B. Jacobson was found to have engaged in unprofessional conduct in the course of his practice of law in violation of the Rules of Professional Conduct. The referee's amended recommendation was for a 90-day suspension of Attorney Jacobson's license to practice law with additional conditions.

¶ 2. We approve the original and amended findings, conclusions, and recommendations, except that we determine that the seriousness of Attorney Jacobson's misconduct warrants the imposition of a five-month suspension.

¶ 3. Attorney Jacobson was licensed to practice law in Wisconsin in 1971. He has not been the subject of a prior disciplinary proceeding.

¶ 4. This case covers 17 counts involving Client One (Counts 1-4 and 12-14), Client Two (Counts 5-6 and 15), Client Three (Count 7), Client Four (Counts 8-9), Client Five (Counts 10-11), and Client Six (Counts 16-17). The counts generally allege failure to communicate with clients and keep them informed, trust account discrepancies, misuse of client funds, and misrepresentation to and failure to cooperate with the Office of Lawyer Regulation (OLR).

¶ 5. The referee concluded that the OLR had not sustained its burden on five of the counts. The OLR has not appealed that conclusion. Of the remaining 12 counts where the referee concluded there had been misconduct, Attorney Jacobson has appealed on eight.

¶ 6. Both parties also appeal the referee's amended recommendation of a 90-day suspension. Attorney Jacobson submits this as excessive, particularly if he prevails on any of the eight counts of misconduct which he challenges, and the OLR submits the referee should have reaffirmed her initial recommendation of an 18-month suspension.

¶ 7. This court adopts the referee's findings of fact unless clearly erroneous. In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 498 N.W.2d 380 (1993). No deference is granted to the referee's conclusions of law and they are reviewed de novo. In re Disciplinary Proceedings Against Norlin, 104 Wis. 2d 117, 310 N.W.2d 789 (1981). The court may impose whatever sanction it deems appropriate regardless of the referee's recommendation. In re Disciplinary Proceedings Against Widule, 2003 WI 34, 261 Wis. 2d 45, 660 N.W.2d 686.

I. CLIENT ONE

¶ 8. Counts 1-3 alleged three separate violations of SCR 20:8.4(c) (prohibiting dishonesty, fraud, deceit or misrepresentation).

¶ 9. Count 4 alleged violations of former SCR 20:1.15(b) (a lawyer shall promptly notify a client and interested third parties in writing after receiving funds from the client and shall promptly deliver on request funds in which they have an interest and/or render a fall accounting), and SCR 20:1.4(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information).

¶ 10. Counts 12 and 13 alleged violations of SCR 20:8.4(c) and Count 14 alleged a violation of SCR 20:8.4(f) and SCR 22.03(6) (jointly prohibit willful failure to provide OLR with information during the course of an investigation).

¶ 11. These counts involve Attorney Jacobson's representation of the client in a criminal failure to pay child support matter and a related family court matter. The client's wife initially gave Attorney Jacobson a non-refundable retainer of $1000 in October 1999. The client himself gave Attorney Jacobson $4000 in March 2000. Attorney Jacobson wrote three checks to himself from his trust account in the amounts of $2000/$1000/$2000 on March 17, 2000, April 25, 2000, and May 2, 2000, respectively. Two months after the last check, Attorney Jacobson wrote a check from his business account to this client's trust account for $1000.

¶ 12. Approximately one year later Attorney Jacobson wrote a bill for all of the services rendered to the client which totaled $9560 less payment received of $5000. The problem arose when, prior to having provided the client with his bill, the client's wife asked Attorney Jacobson to apply the funds in her husband's trust account (which she apparently thought were either $4000 or $5000) to his bail as he had recently been incarcerated. Attorney Jacobson informed her there was nothing in the trust account.

¶ 13. The client contended that the $4000 he gave Attorney Jacobson was supposed to be held by him in escrow as a "bargaining chip" in negotiations with the district attorney to reduce the pending charges against him (i.e., to show his good faith and intent to pay his child support arrearage). However, Attorney Jacobson disputed this, claiming that no amount of money would have sufficed to reduce the charges and it was his understanding the entire $5000 was to be used as needed to pay his attorney's fees.

¶ 14. The referee concluded that the OLR had presented insufficient facts to sustain a finding of misconduct on Counts 1-3. She was particularly influenced by the fact that the client was not able to explain how, if indeed the payments were to be held in escrow, he still intended to pay Attorney Jacobson's fees given the substantial legal work Attorney Jacobson had done for him. The referee stated:

This is not a case where the attorney is accused of falsifying his time records, but rather seems to have arisen out of a misunderstanding about the purpose and application of funds paid by the client.... Jacobson's failure to explain to his client that he would be applying his fees to the amount in the trust fund certainly is not commendable. Nonetheless his actions do not rise to the level of conversion of those funds since he earned his fees. Mr. Jacobson's admitted practice of not sending regular bills to his clients, including [this client] nor keeping him reasonably informed about the status of the balance in his account gave rise to the problems now confronting Mr. Jacobson.

¶ 15. However, the referee found that misconduct had occurred with respect to Count 4 which arose out of Attorney Jacobson's failure to provide the client with requested information about the status of his trust account. The client testified that when he asked Attorney Jacobson to apply part of the funds to his bail, Attorney Jacobson said, "no, he couldn't do that" and when his wife later called Attorney Jacobson on several occasions to inquire about the funds, Attorney Jacobson failed to provide an accounting. He testified that Attorney Jacobson told her not to "worry about it" and also implied that it was not her "standing" to request billing information relating to her husband. The referee believed the version of this dispute as related by the client and his wife.

¶ 16. The referee also concluded that misconduct occurred with respect to Count 12 because Attorney Jacobson never sent a bill to his client, contrary to what he represented to the OLR, and did not prepare a bill until after the OLR began its investigation. Thus the referee concluded that the OLR had adequately proved that Attorney Jacobson misrepresented what he told his client about moving the client's funds out of the trust account to pay his fees.

¶ 17. Finally, the referee found no misconduct relating to Counts 13 and 14. She concluded there was no evidence Attorney Jacobson misrepresented to the OLR that the $4000 payment made by his client was for attorney's fees, given that he reasonably believed that the funds were to be legitimately used for that purpose. She further concluded that Attorney Jacobson may simply have not brought up the initial $1000 retainer fee during the OLR's investigation, as opposed to misrepresenting that matter, because that initial payment was outside the general period that was the subject of the investigation.

¶ 18. The OLR accepts the referee's conclusion that there was no misconduct involved with Counts 1-3 and 13-14. However, Attorney Jacobson contests the conclusion of misconduct with respect to Count 12. He argues that in the absence of a full transcript of the OLR's investigation there is insufficient evidence that he misrepresented anything to the agency. He also insists that he did prepare a bill for the client's services because at the very least the billing information was on his computer which should qualify as a bill. Finally, he submits that any misstatements he may have made to the OLR were inadvertent and due only to his lack of information at the time.

¶ 19. The OLR responds that the testimony of its investigator was sufficient to provide the necessary evidence to support the misconduct finding. It further argues there was testimony from the client and his wife that they never received a bill and that it is disingenuous to contend that something on Attorney Jacobson's computer that was never sent to the client would qualify as a bill.

¶ 20. We adopt the findings of fact and conclusions of law of the referee with respect to all of these counts. Both with respect to the counts on which no misconduct was found and the single count where there was a violation, we believe the referee was best situated to judge the credibility of the witnesses. There is no indication that the findings of fact that support the referee's conclusions are clearly erroneous.

¶ 21. We reject Attorney Jacobson's contention that the OLR had to present a full transcript of its investigatory process, rather than simply the testimony of its investigator, to provide the necessary evidence to support Count 12. We also reject his contention that billing information on his computer, which was never sent to the client, can be characterized as a bill.

II. CLIENT TWO

¶ 22. Count 5 alleged another violation of SCR 20:8.4(c), Count 6 alleged another violation of SCR 20:1.15(b), and Count 15 alleged another violation of SCR 20:8.4(f) and SCR 22.03(6).

¶ 23. These counts arose out of Attorney Jacobson's representation of a client in a personal injury action. The client agreed to an $8000 settlement that would have provided him with a net payment of $3274.84 after attorney's fees of $2666.66 to Attorney Jacobson and $2058.50 to six healthcare providers.

¶ 24. Attorney Jacobson deposited the $8000 in his trust account on April 7, 2000, and immediately paid the client and himself. However, he did not pay the providers or provide notice that there had been a settlement. Within a few days, however, he disbursed another $2000 from the trust account to himself for attorney's fees which, according to the referee's findings and conclusions, could only have come from the amount in the account that was to have been paid to the providers. Over a year later Attorney Jacobson told the OLR that he found six checks in his file payable to the providers which apparently had not been sent.

¶ 25. The referee concluded there had been a violation of Count 5 because of a conversion of funds to Attorney Jacobson that were supposed to have gone to the providers. The referee also concluded there had been a violation of Count 6 because Attorney Jacobson did not notify the providers that he was holding funds on their behalf. Finally, the referee concluded there had been a violation of Count 15 because Attorney Jacobson failed to disclose to the OLR that he knew his client was having trouble with his credit because the providers had not been paid.

¶ 26. The referee refused to accept Attorney Jacobson's explanation that he had simply made a mistake in not making the payments. She noted that within a few months of the providers not being paid, the client began to receive collection letters and he called Attorney Jacobson several times for an explanation. However, Attorney Jacobson never returned those calls. The referee concluded that even if Attorney Jacobson initially made a mistake with respect to paying the providers, there was no excuse for his failure to respond to his client's inquiries.

¶ 27. The referee further observed that Attorney Jacobson admitted he had not sent written notification to the providers.

¶ 28. Finally, the referee found Attorney Jacobson's contention that he had no knowledge of any of the client's problems, such that he could have disclosed such knowledge to the OLR during its investigation, to lack credibility.

¶ 29. Attorney Jacobson concedes that he violated Count 6.

¶ 30. However, he argues that the conclusion with respect to Count 5 cannot be sustained because there was no evidence that he was attempting to defraud, cheat, deceive or mislead the providers. Rather, he claims that he merely "absent-mindedly, sloppily and even perhaps negligently" did not mail the checks.

¶ 31. Attorney Jacobson also disputes the conclusion that misconduct occurred with respect to Count 15. He contends he never actually knew of any problem with this client until the OLR's full investigation. He basically asserts that the client's claims that he tried to call him about this problem should not be believed. Finally, he again claims that the OLR failed to keep a full transcript of the questioning during its investigation and this, coupled with this "imperfect recollections" renders the referee's findings and conclusions on Count 15 to be in error.

¶ 32. The OLR submits the referee could reasonably conclude there had been a violation of Count 5 because there was evidence the client called Attorney Jacobson on several occasions to discuss the nonpayment to the providers. The OLR contends that the necessary intent can be inferred from the circumstances.

¶ 33. The OLR further responds that, once again, it is up to the referee to judge the credibility of its investigator and investigative process and there does not have to be a verbatim transcript of the investigation.

¶ 34. We find no basis to overturn the referee's findings and conclusions with respect to these counts. As noted, the referee had the benefit of listening to the testimony and assessing the credibility of Attorney Jacobson vis-á-vis his client. Further, as previously noted, the OLR investigatory process does not have to be memorialized by a transcript.

III. CLIENT THREE

¶ 35. Count 7 alleged a violation of former SCR 20:1.15(a) (property of clients to be held in trust).

¶ 36. This count arose out of Attorney Jacobson's representation of a client for which he received an advance fee of $3500 which was placed in his trust account on May 4, 2000. Attorney Jacobson never actually performed any work for the client and issued a refund check to him over two months later. But when the $3500 was deposited, there was an overdraft of approximately $500 in the trust account which the $3500 helped bring back into balance. When the refund was made, the $500 overdraft, plus an overdraft charge, had not yet been repaid so the refund reinstated the negative balance in the trust account. In fact, since there was not enough in the trust account to cover the refund Attorney Jacobson quickly had to deposit yet more funds from another client to cover it.

¶ 37. The referee concluded that Attorney Jacobson did not apply basic trust fund standards to the handling of his account and thus misconduct occurred.

¶ 38. Attorney Jacobson does not dispute the misconduct but relies on a mitigating factor that will be discussed later.

¶ 39. The findings of fact of the referee with respect to this count are not clearly erroneous and we agree with her legal conclusion that misconduct occurred.

IV CLIENT FOUR

¶ 40. Count 8 alleged another violation of SCR 20:8.4(c) and Count 9 alleged another violation of SCR 20:1.15(b).

¶ 41. These counts arose out of Attorney Jacobson's representation of a client in a personal injury action. He received a settlement on her behalf in July 2000 and was supposed to pay $890 of it to a healthcare provider but did not actually do so until August 2001 after the OLR began its investigation of the following grievance.

¶ 42. The investigation revealed that shortly after receiving this settlement, Attorney Jacobson did issue a check to the provider but there were insufficient funds to cover it. In any event, there was no evidence that the check was ever received and that the provider attempted to cash it. The insufficiency was due to the trust account problems resulting from the refund check issued to Client Three. The provider's office manager testified that she contacted Attorney Jacobson on several occasions about the unpaid bill but never received a response.

¶ 43. The referee concluded that Attorney Jacobson violated Count 8 by using funds owed to the provider to pay Client Three. In addition, the referee concluded that misconduct with relation to Count 9 was proven by Attorney Jacobson's failure to provide written notification to the provider that he had its funds. The referee noted that when the settlement proceeds came in, Attorney Jacobson issued checks both to the client and to himself for attorney's fees, thereby implying there was no excuse for his failure to follow through on his obligation to the provider.

44. Attorney Jacobson argues that although the supreme court rule does not specify an intent requirement in order to find dishonesty, fraud, deceit or misrepresentation, this is implicit. However, he concedes that intent can be inferred from the circumstances. But he again argues there is no evidence other than that he unknowingly wrote a check when the trust account was overdrawn.

¶ 45. Further, Attorney Jacobson argues it was the provider's fault that the initial check, even though overdrawn, was not, according to his version of the incident, logged in as received and then cashed.

¶ 46. Finally, Attorney Jacobson claims in general that the "tepid nature" of the OLR's proof on these counts is evident and the referee's findings and conclusions should be overturned.

¶ 47. In response, the OLR notes that Attorney Jacobson apparently concedes there were insufficient funds in his trust account to cover the initial check to the provider even if the provider failed to properly log and cash it.

¶ 48. Further, the OLR contends that the referee had the benefit of considering all of the evidence and could reasonably conclude that Attorney Jacobson never even sent the initial check and that the provider was not somehow at fault. The OLR submits it was proper for the referee to judge the credibility of determinations involved with this matter.

¶ 49. Finally, the OLR argues pursuant to In re Disciplinary Proceedings Against Marks, 2003 WI 114, 265 Wis. 2d 1, 665 N.W.2d 836 that the lack of actual knowledge or proof of purpose for intent is not a defense to SCR 20:8.4(c).

¶ 50. We conclude that there is no basis to overturn the referee's findings and conclusions with respect to these two counts. Attorney Jacobson clearly used the funds of others to cover a trust account shortfall and failed to issue the proper notice to the providers. It is unnecessary to prove the tort of misrepresentation in order to establish that an attorney has violated a rule of professional conduct involving dishonesty, fraud, deceit, or misrepresentation. Id. at ¶ 50; In re Disciplinary Proceedings Against Schalow, 131 Wis. 2d 1, 388 N.W.2d 176 (1986). Nonetheless, it was the referee's role to judge Attorney Jacobson's credibility with respect to intent, and the inference to be drawn from the evidence, and we cannot conclude that the findings in this regard are clearly erroneous or that the legal conclusions drawn from those findings are in error.

V CLIENT FIVE

¶ 51. Count 10 alleged another violation of former SCR 20:1.15(b). Count 11 alleged a violation of former SCR 20:1.15(e) (requires preservation of complete trust account records for all six years).

¶ 52. These counts arose out of Attorney Jacobson's representation of a client and his wife in a personal injury and worker's compensation action. He received a settlement check for $78,000 in December 2000, $20,000 of which was to go to the subrogated worker's compensation carrier. Attorney Jacobson failed to notify the carrier of the settlement and did not pay the $20,000 until over three months later. Further, there was no evidence that Attorney Jacobson reconciled his trust account in the year prior to the $20,000 payment.

¶ 53. The referee concluded that these violations occurred and Attorney Jacobson does not challenge that conclusion.

¶ 54. We do not find any basis under the controlling standards to overturn the referee's findings and conclusions with respect to these counts.

VI. CLIENT SIX

¶ 55. Count 16 alleged a violation of SCR 20:1.5(b) (the basis/rate of fees shall be communicated to the client within a reasonable time after commencing representation). Count 17 alleged another violation of SCR 20:1.4(a) (the client shall be reasonably informed about the status of a matter).

¶ 56. These counts arise out of Attorney Jacobson's representation of a married couple on several occasions before 1996 when they came to him over a dispute involving construction of a home. He asked for a $4000 retainer. An initial payment of $1000 was made for which he spent six to ten hours reviewing construction documents to see if there was a basis for suit. A second $1000 was sent to him six months later, in mid-1997.

¶ 57. The clients claimed that the initial $1000 was to cover court costs and filing fees to actually commence the lawsuit. However, they had no specific recollection of having discussed the exact nature of the fee and have no records to this effect.

¶ 58. Attorney Jacobson testified that he did not recall exactly whether this would be a flat fee or on an hourly basis but admitted there was no written retainer agreement. He conceded that his file on the matter was "not available — I have no idea where it is."

¶ 59. The clients also claimed that in mid-1998 they asked for a copy of the demand letter that Attorney Jacobson supposedly had previously sent to the builder. He admitted that he never sent them a copy.

¶ 60. The clients further claimed that in mid-1998 they first requested an itemized statement of services. This was followed by an early 1999 demand to the same effect which accompanied a notice terminating Attorney Jacobson's service and a request for a return of any of the unused $2000. This was followed by a third request for an itemized statement and a return of unused money a few months later in 1999. A fourth such request was made in late 1999. Attorney Jacobson stated in a letter after the fourth request, at a time when he knew the clients had already filed a grievance, that he would soon send an itemized statement, but he never did so.

¶ 61. The referee concluded there had been a violation of both counts. She held that Attorney Jacobson should have discussed the nature of the fee agreement with the clients given that the fee basis was apparently going to be different than when he had done prior legal work for them. She also noted that Attorney Jacobson never explained why he told the clients to bring in $4000 nor did he ever inform them how the $2000 that they did pay was being used. Finally, the referee concluded Attorney Jacobson had clearly failed to respond to the clients' numerous requests for an itemized statement and return of any unused funds.

¶ 62. Attorney Jacobson claims that because neither he nor the clients can recall whether there was a discussion of the basis for a fee, there was insufficient proof that he did not explain the fee and thus Count 16 is not proven.

¶ 63. Attorney Jacobson concedes there is sufficient evidence that he failed to provide the clients with the demand letter he had sent to the builder, and thus Count 17 was proven. However, he claims he could not provide them with a billing statement because he had already turned over his file to them which contained the notes he would have needed to prepare a bill.

¶ 64. The OLR argues in response that simply because neither side can recall whether the basis for the fee was discussed, Attorney Jacobson cannot validly claim that he "communicated" the fee basis as the rule requires. The OLR emphasizes that Attorney Jacobson admitted there was no written fee agreement and contends that therefore communication was inadequate.

¶ 65. The OLR further indicates that in late 1999 Attorney Jacobson admits having sent the clients a letter indicating that an itemized bill would soon be sent, without any hint that he did not have access to billing information. Further, the OLR notes that when Attorney Jacobson says he turned over the file to the clients in late 1999, he had already previously received several requests for billing information. Finally, the OLR states there is nothing in the record from the clients indicating that they indeed ever received the file.

¶ 66. We adopt the referee's findings and conclusions with respect to these counts.

¶ 67. The absence of a written fee agreement or any recollection by either side that the fees had otherwise been discussed supports the conclusion that Attorney Jacobson failed in his duty under the supreme court rule to communicate the basis/rate for the fee.

¶ 68. Attorney Jacobson concedes he never forwarded to the clients a copy of the demand letter. But his attempt to dismiss the failure to furnish a bill is not supported by the findings. Attorney Jacobson stated in the late-1999 letter — well after the clients' initial request for a bill — that he would furnish one, yet he did not do so. There was no evidence that he asked for return of the file, assuming it was ever sent to the clients, as a necessary step to prepare the bill.

VII. SANCTIONS

¶ 69. The OLR initially requested a two-year suspension, restitution of the $2058.50 to the Client Security Fund (with repayment to the client of $100), two years of trust account supervision, and costs. Attorney Jacobson asked for a reprimand only.

¶ 70. The referee originally recommended an 18-month suspension plus the additional factors, including costs. The referee acknowledged that mitigating factors on the sanction could include mental disability and alcohol dependency provided the attorney suffers from such a condition, the condition caused the misconduct, recovery from the condition is demonstrated by a meaningful and sustained period of successful rehabilitation, and the recovery has stopped the misconduct suggesting that it is unlikely to recur. However, the referee noted that Attorney Jacobson's proffered evidence to support such mitigating factors was insufficient.

¶ 71. However, as previously noted, this court committed this matter to be reopened for additional evidence relating to Attorney Jacobson's physical and mental condition. Following the remanded proceedings, the referee issued amended findings, conclusions, and a recommendation. The suspension recommendation was reduced to 90 days. The referee also recommended that reinstatement be conditioned on not only two years of trust account supervision but also: (1) semi-annual reports for a period of two years from a psychiatrist or other healthcare provider indicating that Attorney Jacobson's depression and any other emotional or psychological problems that would impair his practice of law are under control; and (2) two years of monitoring of Attorney Jacobson's law practice by an OLR-approved attorney with reports of that monitoring to the OLR on a mutually agreed schedule.

¶ 72. At the remanded proceedings Attorney Jacobson primarily presented testimony from himself and a psychiatrist. The evidence and testimony revealed that on May 6, 2000, Attorney Jacobson suffered a heart attack and underwent double bypass surgery. This was followed by three months of rehabilitation. While recovering from the surgery, the psychiatrist found Attorney Jacobson to be anxious and depressed and preoccupied with issues surrounding his medical situation such as the possibility of death or physical debilitation and concern about family and finances.

¶ 73. In the subsequent two years the psychiatrist saw Attorney Jacobson approximately 50 times and continues to see him one or two times a month at present as needed. In addition to his heart problems, Attorney Jacobson has reported other problems since mid-2000 including divorce, problems with his children, and a decrease in income. The psychiatrist has prescribed varying levels of anti-depressant medication since September 2000.

¶ 74. The psychiatrist testified that to a reasonable degree of medical probability there was a direct relationship between Attorney Jacobson's depression and his misconduct. The psychiatrist found an "extremely high degree of correlation" between the timing of the misconduct and the periods when Attorney Jacobson was reporting severe depression. The psychiatrist further stated that Attorney Jacobson is no longer depressed, is not on medication, is continuing therapy as needed, and his past self-destructive behavior is unlikely to recur.

¶ 75. The referee concluded that since all but the counts relating to Client One occurred during the 2000-2002 period during which Attorney Jacobson had heart and psychological problems, and given the causal testimony from the psychiatrist — which the referee characterized as an "extremely clear and thorough analysis" of the problem — his condition should be a mitigating factor. The referee stated:

Depression is a devastating illness and its effects as described by Dr. Taxman were obvious in every aspect of Mr. Jacobson's life. There is no question that Mr. Jacobson's ability to function as a lawyer was diminished and that he was unable to handle the myriad details of a sole practice, i.e., his depression and the failure to fulfill his duties as a lawyer co-existed for a lengthy period of time. As Dr. Taxman noted, fear and anxiety, as well as depression and certain personality traits, led to significant disorganization in Mr. Jacobson's life....
The OLR's contention that the depression did not disable him from performing his legal duties is not supported by the evidence. It is my opinion that Mr. Jacobson's on-going depression was the cause of the misconduct which led to these disciplinary proceedings.

¶ 76. Attorney Jacobson concedes that if the 12 counts against him stand, a 90-day suspension is appropriate. But he argues that if less than 12 counts are upheld, the discipline should be reduced proportionately, perhaps even down to a public reprimand.

¶ 77. The OLR has a variety of objections to a reduction in suspension and wants the original 18-month suspension imposed. These include contentions that: (1) the psychiatrist offered only "vague general information" as to what problems a depressed attorney could encounter in his practice; (2) the psychiatrist was "very hesitant" to render an opinion on causation given that he was not an attorney; (3) the psychiatrist admitted that Attorney Jacobson's condition could not have led to any deceitful or dishonest information in communications with the OLR; (4) the psychiatrist never conducted formal testing on Attorney Jacobson and simply took his word as truth; (5) in addition to the matter with Client One, which predates the onset of Attorney Jacobson's condition, much of the misconduct with respect to Client Two also occurred in early 2000 before the heart attack and the overdraft involving Client Three predated the heart attack; (6) at the same time Attorney Jacobson supposedly had severe problems, he apparently was functioning adequately in the other aspects of his practice suggesting that his depression, selectively caused him to misbehave only as to some of his clients; and (7) an 83 percent reduction in the recommended sanction is excessive in light of In re Disciplinary Proceedings Against North, 148 Wis. 2d 45, 434 N.W.2d 614 (1989), where somewhat similar mitigating circumstances only resulted in a reduction of the suspension from 12 months to 9 months.

¶ 78. We do not consider the psychiatrist's testimony regarding causation to be as vague as the OLR portrays it. He did concede that he was not familiar with the specifics of the numerous counts in this matter. Attorney Jacobson acknowledges that he only questioned his witness in a "more concentrated nature" regarding the connection between his condition and the misconduct. Yet the psychiatrist's opinion that there was a direct causal connection between the two was unequivocal.

¶ 79. However, we agree with the OLR that several of the 12 counts in which we have found misconduct to have occurred in whole or in significant part predate the onset of Attorney Jacobson's medical and psychological problems. We also agree that the fact that he apparently was able to serve other clients free of misconduct is also significant. Pursuant to In re Disciplinary Proceedings Against Karlsson, 2001 WI 126, 248 Wis. 2d 681, 635 N.W.2d 771, the fact that the attorney was able to maintain and represent other clients during the period when she purportedly suffered from anxiety and depression, coupled with unclear, detailed and inconsistent evidence of causation, led the referee to reject this as a mitigating factor.

¶ 80. Accordingly, we believe that a suspension in excess of the referee's amended recommendation is necessary. Attorney Jacobson's 12 counts of misconduct represent a serious and persistent failure to comply with the Rules of Professional Conduct. Under these circumstances, we believe that a suspension of five months is warranted.

¶ 81. IT IS ORDERED that the license of Attorney Bruce B. Jacobson to practice law in Wisconsin is suspended for a period of five months, effective January 27, 2005.

¶ 82. IT IS FURTHER ORDERED that Attorney Jacobson comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended.

¶ 83. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Jacobson shall: (1) pay $18,705.19 to the OLR representing the costs of this proceeding; and (2) pay the Client Security Fund $2058.50 and Client Two $100, plus interest at the statutory rate from the date the fund and client expended those amounts. If these costs are not paid within the time specified, and absent a showing to this court of an inability to pay those costs within that time, the license of Attorney Jacobson to practice law shall remain suspended indefinitely until further order of the court.

¶ 84. IT IS FURTHER ORDERED that for a period of two years following Attorney Jacobson's suspension, semi-annual reports shall be submitted by his psychiatrist or other healthcare provider, as approved by the OLR, concerning the state of his psychological condition insofar as it might impair his practice of law. The first such report shall be filed six months after the date of suspension.

¶ 85. IT IS FURTHER ORDERED that for a period of two years following the date of his reinstatement to practice law, Attorney Jacobson's practice of law shall be monitored by an OLR-approved attorney on a schedule set by the OLR.

¶ 86. IT IS FURTHER ORDERED that for a period of two years after reinstatement Attorney Jacobson shall provide the OLR with quarterly reports, in a manner satisfactory to the OLR, concerning his trust account record keeping. These reports shall commence three months after the date of reinstatement.

       SCR 22.17(1) provides: "(1) Within 20 days after the filing of the referee's report, the director or the respondent may file with the supreme court an appeal from the referee's report."

       On July 2, 2003, this court granted Attorney Jacobson's motion to reopen this matter for additional evidence consisting of: (1) expert testimony relating to his physical, emotional, and mental condition during the period involved with this misconduct; and (2) testimony and evidence relating to his character and reputation in the community. The court directed that the referee was to consider this testimony and evidence solely as it might constitute a mitigating factor. The lower suspension recommendation resulted after the remand.

       SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       Former SCR 20:1.15(h) provided:

        (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.

       SCR 20:1.4(a) provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

       SCR 20:8.4(f) provides: "It is professional misconduct for a lawyer to: (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       SCR 22.03(6) provides: "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

       The client received $2058.50 from the Client Security Fund to pay the bills to which he added another $100 in interest of his own funds. The referee recommended as part of the sanction in this case that Attorney Jacobson repay the Client Security Fund $2058.50 and his client $100. Attorney Jacobson neither admits nor denies that such repayment has ever been made. However, the OLR states that as of the date of oral argument the Client Security Fund had not been reimbursed. The order in this case assumes that neither the Fund nor the client have yet been reimbursed.

       The referee rejected Attorney Jacobson's argument that SCR 20:1.15(b) was unfair because it had the potential of alerting third parties as to funds that could be improperly attached or garnished. The referee correctly stated she did not have jurisdiction to overturn a supreme court rule nor was there any apparent legitimate fear with notifying these providers.

       Former SCR 20:1.15 (a) provided:

        (a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall he maintained in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The trust account shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay or avoid imposition of account service charges, may be deposited in such an account. Unless the client otherwise directs in writing, securities in bearer form shall be kept by the attorney in a safe deposit box in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The safe deposit box shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. Other property of a client or third person shall be identified as such and appropriately safeguarded. If a lawyer also licensed in another state is entrusted with funds or property in connection with an out-of-state representation, this provision shall not supersede the trust account rules of the other state.

       The referee again refused to consider the argument that SCR 20:1.15(b) unfairly demanded notice to third persons with an interest in funds.

       Former SCR 20:1.15(e) provided:
      (e) Complete records of trust account funds and other trust property shall be kept by the lawyer and shall he preserved for a period of at least six years sifter termination of the representation. Complete records shall include: (i) a cash receipts journal, listing the sources and date of each receipt, (ii) a disbursements journal, listing the date and payee of each disbursement, with all disbursements being paid by check, (iii) a subsidiary ledger containing a separate page for each person or company for whom funds have been received in trust, showing the date and amount of each receipt, the date and amount of each disbursement, and any unexpended balance, (iv) a monthly schedule of the subsidiary ledger, indicating the balance of each client's account at the end of each month, (v) a determination of the cash balance (checkbook balance) at the end of each month, taken from the cash receipts and cash disbursement journals and a reconciliation of the cash balance (checkbook balance) with the balance indicated in the bank statement, and (vi) monthly statements, including canceled checks, vouchers or share drafts, and duplicate deposit slips. A record of all property other than cash which is held in trust for clients or third persons, as required by paragraph (a) hereof, shall also be maintained. All trust account records shall be deemed to have public aspects as related to the lawyer's fitness to practice.

       SCR 20:1.5(b) provides: "(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation."

       Attorney Jacobson also maintains that since he represented these clients before, under a strict reading of the rule there was no reason for him to explain the basis for the fee. He relies on the Comment to SCR 20:1.5(b): "When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee."
      Attorney Jacobson's argument assumes that an understanding concerning the basis/rate of a fee have evolved here, which the referee did not find to be the case.

       The OLR asks this court to take judicial notice of another pending disciplinary proceeding against Attorney Jacobson, Case No. 04-0753-D, complaint filed March 12, 2004. We do so, however the pendency of that proceeding is not a factor in the disposition of this case.