text:
    In the Matter of Disciplinary Proceedings Against John Miller Carroll, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant-Appellant, v. John Miller Carroll, Respondent-Respondent.
    Supreme Court

      No. 00-1426-D.

      Submitted on briefs September 17, 2001.

      Decided December 6, 2001.

    2001 WI 130
    (Also reported in 636 N.W.2d 718.)

      For the complainant-appellant there were briefs by Gregg Herman, Matthew J. Price and Loeb & Herman, S.C., Milwaukee.
    For the respondent-respondent there was a brief by John Miller Carroll, Wind Lake.
   PER CURIAM.

¶ 1. The Board of Attorneys Professional Responsibility (the Board) has appealed from the findings of fact, conclusions of law, and disciplinary recommendation of a referee that the license to practice law in Wisconsin of Attorney John Miller Carroll be suspended for six months.

¶ 2. The referee's findings and conclusions addressed ten separate counts of professional misconduct set forth in the Board's complaint in this proceeding. One count was dismissed on stipulation of the parties and the referee found that misconduct had occurred with respect to seven of the remaining nine counts, dismissing the remaining two counts.

¶ 3. We adopt the referee's findings of fact and conclusions of law with respect to the seven counts on which misconduct was found to have occurred, as well as count nine which she recommended be dismissed. However, we reject the referee's findings of fact and conclusions of law with respect to count ten which she recommended be dismissed after finding that no misconduct had occurred. Finally, we agree with the referee that the seriousness of Attorney Carroll's professional misconduct warrants the suspension of his license to practice law in this state, although we do not follow her recommendation as to the length of the suspension.

¶ 4. Attorney John Miller Carroll was admitted to practice law in Wisconsin in 1987 and currently practices in Wind Lake. He has been disciplined for professional misconduct on three previous occasions: (1) a 1992 private reprimand for failing to hold funds in trust in which both he and his former law firm claimed an interest; (2) a 1997 private reprimand for performing work for a client after his services were terminated and for misrepresenting that he had filed a motion on behalf of the client; and (3) a public reprimand in 1999 for neglect of a matter, for failing to communicate with a client, and failing to return a retainer; see 72 Wisconsin Lawyer at 45-46 (July 1999).

¶ 5. The Board filed the instant disciplinary complaint against Carroll on April 28, 2000. Attorney Joan F. Kessler was appointed to act as a referee in the matter. In Attorney Carroll's answer to the complaint, he admitted some, and denied other, of the factual allegations contained in the complaint and sought either a dismissal of the matter in its entirety or, in the alternative, a sanction that was commensurate with the severity of the conduct that was found to have taken place.

¶ 6. The Board's allegations of misconduct and the referee's findings dealt with ten counts, involving four separate clients: H.H., J.J., L.L., and R.A.

CLIENT H.H.

¶ 7. Attorney Carroll represented H.H. who was injured in 1997 in an automobile rear end collision. The matter was ultimately settled with the other party paying $2500 plus a medical bill of $292. Attorney Carroll charged H.H. one-third of the $2500 plus costs of approximately $432 covering filing and service fees for the two lawsuits commenced, the first lawsuit having been improperly served and therefore dismissed.

¶ 8. Count one of the Board's complaint alleged that Attorney Carroll violated SCR 20:1.3, failure to diligently pursue the client's claim, by virtue of having permitted the first lawsuit to expire without service. The referee concluded that misconduct had occurred with respect to this count.

¶ 9. Count two alleged a violation of SCR 20:1.4(a), failure to keep the client reasonably informed about the status of the matter and failure to promptly comply with reasonable requests for information, by virtue of Attorney Carroll's failure to keep H.H. adequately informed, despite her numerous requests for information, during the course of the litigation. The referee concluded that misconduct had occurred with respect to this count.

¶ 10. Count three alleged a violation of SCR 20:1.5(c), failing to enter into a written contingent fee agreement with the client, by virtue of the alleged absence of such an agreement in this instance. This count was dismissed by the referee upon stipulation of the parties.

¶ 11. Count four alleged a violation of SCR 22.07(2), failure to fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct upon investigation by the Board, by virtue of Attorney Carroll's failure to disclose to the Board during its investigation that he had filed the earlier lawsuit that was ultimately dismissed and in general misrepresenting the nature of his representation of H.H. The referee concluded that misconduct had occurred with respect to this count.

¶ 12. Neither Attorney Carroll nor the Board have raised on appeal any matters pertaining to the counts involving the representation of H.H., and we adopt the referee's findings and conclusions with respect to these counts.

CLIENT J.J.

¶ 13. Attorney Carroll represented J.J. in 1998 on a claim against an insurance company involving a motorcycle loss. The company issued a check listing J. J., Attorney Carroll, and the lien holder on the motorcycle as payees. Attorney Carroll's office unsuccessfully attempted to deposit the check without obtaining an endorsement from the lien holder. After that Attorney Carroll asked the company to issue a new check deleting the lien holder's name, which it refused to do. Attorney Carroll then gave the original check to J.J., instructing him to obtain the lien holder's signature. J.J. returned it to Carroll with an illegible signature purporting to be that of the lien holder which Attorney Carroll then deposited in his trust account. It was later determined that the lien holder had not actually endorsed the check.

¶ 14. Attorney Carroll testified in the disciplinary proceeding before the referee that he had been told by J.J. that the lien would be satisfied and that is why the lien holder signed the check. However, the referee found that Attorney Carroll should have known that this likely was untrue because he knew that his client had previously lied to him about the status of the lien and he also should have been suspicious when the check was returned with the illegible signature.

¶ 15. The referee found that once Attorney Carroll discovered that his client had lied to him about a significant financial matter, it was unreasonable and irresponsible to deliver a negotiable instrument to him, given the obvious high risk of forgery. The referee further stated that Attorney Carroll should not escape responsibility for the fraudulent conduct he set in motion under these circumstances. Thus the referee concluded that Carroll had committed professional misconduct under SCR 20:8.4(e), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, count five.

¶ 16. Neither the Board nor Attorney Carroll have appealed any aspect of the referee's determination with respect to this count, and we adopt the referee's findings and conclusions.

CLIENT L.L.

¶ 17. L.L. had hired Attorney Carroll's firm in 1998 to represent her husband on criminal charges. She assigned $5000 of the $10,000 bail she had posted, upon its release, to Attorney Carroll to cover his retainer. However, she also later paid a $5000 retainer directly to him. When her husband was eventually convicted, $9468 of the bail was released and sent to Attorney Carroll which he deposited in its entirety in his client trust account. On the same day he returned $4468 to L.L. and moved the remaining $5000 of the bail to his business operations account. L.L. demanded return of the $5000 and four months later Attorney Carroll returned $4589.75 to her. (The $410.25 still retained by Attorney Carroll was apparently not a subject of dispute).

¶ 18. Attorney Carroll testified that in his view both the $5000 bail assignment and the $5000 paid directly were supposed to have been a retainer. The referee found to the contrary and concluded that professional misconduct had occurred with respect to four counts alleged by the Board with reference to L.L.

¶ 19. The referee concluded that a violation of count six had occurred, involving a violation of SCR 20:1.15(a), failing to hold client funds in trust, by virtue of Attorney Carroll moving what the client considered to be refunded bail from his trust account into his business operations account.

¶ 20. The referee further concluded that a violation of count seven had occurred, involving SCR 20:1.15(b), failing to render a full accounting of trust property and failing to properly return client trust funds, by virtue of Attorney Carroll's failure to respond to the client's request to return the refunded bail and to account for the funds within a reasonable period.

¶ 21. Next, the referee concluded that a violation of count eight had occurred, relating to SCR 20:1.15(d), involving the proper treatment of disputed funds as trust property pending resolution of the dispute with a client, by virtue of Attorney Carroll's failure to retain the disputed bail amount in the client's trust account.

¶ 22. Finally the referee recommended dismissal of count nine, pertaining to a violation of SCR 20:8.4(f), declaring professional misconduct to have occurred when an attorney violates a supreme court rule or decision, again relating to Attorney Carroll's retention of the refunded bail after there was a dispute. The referee concluded that this count was duplicative of the other three counts.

¶ 23. Neither Attorney Carroll nor the Board has raised on appeal any issue with reference to counts six through nine, and we adopt the referee's findings and conclusions with respect to these counts.

CLIENT R.A.

¶ 24. R.A. paid Attorney Carroll $2500 in 1998 to represent her son in a criminal matter. Shortly thereafter she retained a different attorney, discharged Attorney Carroll, and requested a refund of the retainer. He agreed to return $1500 but did not do so. R.A. then called Attorney Carroll's office numerous times during the following nine months but he never responded. Once R.A. filed a grievance with the Board, Attorney Carroll sent her the $1500.

¶ 25. The referee found that a $1500 check had been made out to R.A. soon after Attorney Carroll agreed to refund that amount but that apparently the check was mislaid and never mailed. The referee further found that Attorney Carroll's bookkeeper voided the check five months later and a new check was issued but never mailed. Even though R.A. did not receive the $1500 for an additional four months, during which her repeated calls to Attorney Carroll were ignored, the referee found that "a new check was promptly issued." The referee recommended dismissal of this count, concluding that no violation of SCR 20:1.16(d), which requires the timely refund of any advance payment of fees had occurred. The referee stated:

While better office practice would have disclosed the error earlier, I cannot find this to be an intentional violation of supreme court rules. Nor can I find the failure to discover the error sooner to be such negligence as to rise to an ethical violation. Inadvertent misfilings probably occur in every lawyer's office.... It is unreasonable to expect perfection in every process. I am satisfied that records maintained in the ordinary course of business in his office establish that Carroll made a good faith effort to promptly return this disputed fee.

¶ 26. The Board has appealed the recommendation on this count. It argues that the referee made a clearly erroneous finding of fact when she concluded that once Attorney Carroll's office discovered the mislaid check to R.A., a new check was "promptly issued." The Board argues that a new check was not issued until approximately four months later and thus the referee should not have concluded that Attorney Carroll made a good faith effort to promptly return the disputed fee.

¶ 27. On a secondary note, the Board questions whether there was sufficient evidence that Carroll had ever mislaid the first check to begin with. The Board contends that the referee should have found that Attorney Carroll fabricated the story about having promptly signed the check but then having mislaid it.

¶ 28. In response, Attorney Carroll simply contends that the referee's findings and conclusions on this count were not in error.

¶ 29. A referee's findings of fact on a disciplinary matter will not be set aside unless clearly erroneous. Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 562 N.W.2d 137 (1997). Conclusions of law are reviewed de novo. Disciplinary Proceedings Against Schalow, 131 Wis. 2d 1, 388 N.W.2d 176 (1986).

¶ 30. The referee's findings and conclusions with respect to this count represent a mixture of both factual findings and legal conclusions. To the extent that findings of fact are involved, we hold that they are clearly erroneous and we do not adopt them.

¶ 31. We make no findings and reach no conclusions on whether Attorney Carroll might have fabricated the story about having promptly signed a refund check and then mislaid it. But even if Attorney Carroll's mislaying of the check for five months was excusable, and even if a new check was indeed "issued" at that time, his failure to actually forward the check to the client for an additional four months, with his repeated failure to respond to R.A.'s inquiries during that time, does not represent a "good faith effort" to "promptly" return the fee.

¶ 32. Thus we reject the referee's findings of fact with respect to this count and conclude that a violation of SCR 20:1.16(d) occurred.

SANCTION

¶ 33. Having concluded that a violation of seven counts has occurred, and having noted that Attorney Carroll had three prior disciplinary actions for which he received reprimands, the referee stated that private discipline apparently had not sufficiently encouraged him to change his conduct:

The totality of the offenses are more serious than their isolated parts. The continuing pattern of conduct is disturbing.... [bad office] practices no doubt contributed to his extraordinarily bad judgment.... OLR seeks an unreasonably drastic penalty. To move from private reprimands directly to a one year suspension is unreasonably harsh.

(Emphasis added). However, the referee's report to this court correctly indicated at another point that one of the three reprimands had been public. In any event, the referee recommended a six-month suspension.

¶ 34. The Board argues that the referee apparently relied on a misunderstanding of Attorney Carroll's prior disciplinary record in recommending a six-month suspension, i.e., the referee indicated she was hesitant to impose a one-year suspension when the prior reprimands had been private when, in fact, one of Attorney Carroll's three reprimands was public. The Board argues that since the 1992 private reprimand involved one count, the 1997 private reprimand involved two counts, and the 1999 public reprimand involved four counts, along with the original seven (now eight) violations in this case, Attorney Carroll has violated the rules of professional conduct multiple times and that this deserves a one-year suspension.

¶ 35. In support, the Board points to Disciplinary Proceedings Against Grunewald, 2001 WI 115, 238 Wis. 2d 881, 618 N.W.2d 188 (one-year suspension for six violations, some similar to this case; attorney previously received a private reprimand and a six-month suspension); Disciplinary Proceedings Against Evans, 2001 WI 124, 239 Wis. 2d 279, 618 N.W.2d 873 (two-year suspension for violations including trust account irregularities and fraud, some similar to this case; attorney previously received two private and one public reprimand); Disciplinary Proceedings Against Jackson, 221 Wis. 2d 616, 585 N.W.2d 151 (1998) (one-year suspension for multiple violations which the Board argued were not as serious as those committed here; attorney previously received a public reprimand); and Disciplinary Proceedings Against Hendree, 211 Wis. 2d 440, 565 N.W.2d 119 (1997) (one-year suspension for multiple violations which the Board characterizes as similar to those here; attorney previously received one public reprimand).

¶ 36. Attorney Carroll argues that a six-month suspension is appropriate here because he views the trust account violations in Evans as more severe than those here and because the attorney in Grünewald had previously received a six-month suspension.

¶ 37. The recommended sanctions by a referee are accorded no deference by this court. Disciplinary Proceedings Against Wolf, 165 Wis. 2d 1, 476 N.W.2d 878 (1991). It is this court's responsibility to impose discipline for professional misconduct. Disciplinary Proceedings Against Mandelman, 158 Wis. 2d 1, 460 N.W.2d 749 (1990).

¶ 38. It is apparent that the referee erred in her recitation of Attorney Carroll's prior disciplinary history. Even though she stated earlier in her report to this court that he had received two private reprimands followed by a public reprimand, her discussion of the sanction recommendation specifically characterized them as three private reprimands, after which she said it was excessive to move directly from private reprimands to a one-year suspension. In addition, as we previously held, the referee erred in recommending that count ten be dismissed.

¶ 39. It is, of course, unknown what the referee would have recommended even if she had properly recited Attorney Carroll's disciplinary history and if she had found a violation arising out of count ten. It is possible she might have still recommended a six-month suspension given that Attorney Carroll had received no previous suspensions, unlike Grünewald where the one-year suspension followed a previous shorter suspension. But we need not speculate on what the referee would have recommended had these errors not occurred. As noted, the recommendation on sanction is not binding on this court in any event.

¶ 40. The factors for this court to consider in imposing discipline were stated in Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 498 N.W.2d 380 (1993): (1) the seriousness, nature and extent of the misconduct; (2) the level of discipline needed to protect the public, the courts, and the legal system from repetition of the attorney's misconduct; (3) the need to impress upon the attorney the seriousness of the misconduct; and (4) the need to deter other attorneys from committing similar misconduct.

¶ 41. In this case we conclude that the one-year suspension sought by the Board is appropriate. First, the misconduct committed by Attorney Carroll was serious and extensive. In particular, it demonstrated a pattern of deception and misdealing with clients that runs to the very heart of the integrity of the attorney-client relationship. Second, given the number of violations found here, as well as the previous violations for which Attorney Carroll was reprimanded, it is apparent that there is a substantial need for others to be protected from his propensity for misconduct. Third, it is equally apparent, given his three prior reprimands, that Attorney Carroll has a substantial disregard for the rules of professional conduct and likely will commit future violations unless a serious sanction is imposed now. Finally, if we allow this misconduct to pass without a substantial sanction, we will have sent the wrong message to the attorneys of this state with respect to their obligation under the rules.

¶ 42. We also agree with the Board that previous cases involving similar conduct and/or disciplinary history have resulted in a suspension of this length, if not longer. For example, in Hendree, the attorney only had a single public reprimand prior to the imposition of a one-year suspension for misconduct that included trust account violations similar to those here. Further, Evans involved an attorney who, like Attorney Carroll, had previously received two private and one public reprimands, but received a suspension greater than that sought here by the Board for conduct that also included trust account discrepancies.

¶ 43. Accordingly, we conclude that a one-year license suspension under these circumstances is necessary to satisfy the factors we are to consider under Charlton.

¶ 44. IT IS ORDERED that the license of John Miller Carroll to practice law in Wisconsin is suspended for a period of one year, commencing January 10, 2002.

¶ 45. IT IS FURTHER ORDERED that within 60 days of the date of this order John Miller Carroll pay the Office of Lawyer Regulation the costs of this proceeding in the amount of $11,433.77, provided that if the 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 John Miller Carroll to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 46. IT IS FURTHER ORDERED that, as a condition of reinstatement of his license to practice law, John Miller Carroll shall make restitution to client H.H. in the amount of $184.

¶ 47. IT IS FURTHER ORDERED that John Miller Carroll comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process was substantially restructured. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility to the Office of Lawyer Regulation and the supreme court rules applicable to the lawyer regulation system were also revised in part. The conduct underlying this case arose prior to October 1, 2000, but the referee's proceeding and the appeal occurred after that date. The complainant in this case will be referred to as "the Board" and all references to supreme court rules will be to those in effect prior to October 1, 2000.

       SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

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

       SCR 20:1.5(c) provides:
      (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and if there is a recovery, showing the remittance to the client and the method of its determination.

      Former SCR 22.07(2) provided:

        (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.

       The referee also stated that the misconduct that occurred with reference to counts one, two and four, in the absence of any other violations and given Attorney Carroll's prior disciplinary record, would alone have warranted recommendation of a 30-day suspension, plus a refund of $184 to H.H. for the unnecessary filing fee for the first action.

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

       The referee stated that if count five had been the only misconduct involved it was still sufficiently serious to warrant the recommendation of a 90-day suspension.

       SCR 20:1.15(a) provides:
      (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 he 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 hearer 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.

       SCR 20:1.15(b) provides:
      (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 20:1.15(d) provides:
      (d) When, in the representation, a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be treated by the lawyer as trust property until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall continue to be treated as trust property until the dispute is resolved.

       SCR 20:8.4(f) provides that "[I]t 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."

       The referee indicated that if the three counts relating to L.L. had been the only misconduct involved, she would have recommended a public reprimand.

       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.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Kathryn P. Karlsson, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. Kathryn P. Karlsson, Respondent.
    Supreme Court

      No. 00-2043-D.

      Filed November 29, 2001.

    2001 WI 126
    (Also reported in 635 N.W.2d 771.)

       Motion for reconsideration denied but original opinion modified on 3-15-02.

   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Kathryn E Karlsson's license to practice law in Wisconsin be suspended for nine months based on separate counts of misconduct involving seven clients demonstrating a consistent pattern of neglect over many years; the 19 misconduct counts also included several counts of Attorney Karlsson's failure to cooperate with the Board of Attorneys Professional Responsibility's investigation into her misconduct. Furthermore, the referee concluded that Attorney Karlsson's misconduct reflected a significant long-term problem that predated her depression and her unresolved medical problems which the referee in any event concluded were not causative of the misconduct. In addition to recommending a nine-month license suspension, the referee also recommended certain conditions be imposed for reinstatement including that Attorney Karlsson pay the costs of the disciplinary proceeding totaling $17,923.83.

¶ 2. We determine that the seriousness of Attorney Karlsson's professional misconduct warrants a suspension of her license to practice law in this state for nine months. We also adopt the referee's recommendation and impose specific conditions for reinstatement of her license.

¶ 3. Attorney Karlsson was admitted to practice law in Wisconsin in 1990 and has practiced in Milwaukee since that time. She has not previously been the subject of an attorney disciplinary proceeding.

¶ 4. The Board of Attorneys Professional Responsibility filed a complaint in this court alleging that Attorney Karlsson had committed twelve counts of professional misconduct involving seven of her clients; in addition, the complaint charged Attorney Karlsson with seven separate counts of non-cooperation with the Board in its disciplinary investigation.

¶ 5. After Attorney Karlsson filed an answer, the matter was sent to a referee for a hearing pursuant to the new provisions in SCR 22.13(3). After three days of public hearings in this matter, referee Stanley Hack filed his report concluding that the Board had established all counts of alleged misconduct and noncooperation by Attorney Karlsson. Neither Attorney Karlsson nor the Board has filed an appeal in this matter.

¶ 6. We summarize the referee's findings and conclusions with respect to the 19 separate counts of misconduct alleged against Attorney Karlsson.

(3) ... upon receipt of proof of service of the complaint, the clerk of the supreme court shall select a referee from the panel provided in SCR 21.08, .. . and the chief justice shall appoint the referee to conduct a hearing on the complaint.

COUNTS ONE, TWO, AND THREE

¶ 7. The Board alleged, and the referee so found, that Attorney Karlsson had failed to act with reasonable diligence and promptness in representing her client, T.S., who had retained Attorney Karlsson to represent her in a divorce action. The referee's report detailed T.S.'s numerous attempts to contact Attorney Karlsson during the period of this representation. The referee also made findings regarding Attorney Karlsson's failure to file a written response to T.S.'s grievances as requested by the Board's investigative staff.

¶ 8. The referee concluded that Attorney Karlsson's failure to act with reasonable diligence and promptness in representing T.S. was a violation of SCR 20:1.3. In addition, the referee concluded that Attorney Karlsson's failure to promptly comply with T.S.'s reasonable requests for information and Attorney Karlsson's failure to keep T.S. reasonably informed about the status of the divorce action, constituted a violation of SCR 20:1.4(a). Likewise, the referee concluded that by failing to respond to several letters from Board staff and failing to appear for an investigative interview, Attorney Karlsson had failed to cooperate in the Board's investigation in violation of SCR 21.03(4) and SCR 22.07.

COUNTS FOUR AND FIVE

¶ 9. The Board's complaint alleged, and the referee found, that in the spring of 1997 Attorney Karlsson was retained by E.G. to represent her in a custody and visitation dispute. Attorney Karlsson agreed that E.G. could make installment payments toward the retainer fee and that if E.G. chose ultimately not to file suit, the payments would be returned. E.G. thereafter made at least three $50 payments to Attorney Karlsson for the prepayment of legal fees and in addition, E.G.'s mother, C.L. also made four payments to Attorney Karlsson on behalf of E.G.

¶ 10. The referee determined that Attorney Karlsson performed no services for E.G. and that in fact, E.G. appeared pro se at a subsequent hearing where she was able to resolve the custody issue herself. In addition, the referee determined that Attorney Karlsson had not responded to E.G.'s and her mother's letters requesting refunds of the retainer payments. Also, according to the referee, Attorney Karlsson had failed to respond to the Board's investigative staffs letters concerning the E.G. and C.L. grievances and she failed to appear for an investigative interview concerning those matters. When Attorney Karlsson later appeared at a rescheduled interview, the Board staff requested that she provide a written response to the specific allegations of the grievances but, despite follow-up requests, Attorney Karlsson never filed a written response to the E.G. and C.L. grievances. In addition, the referee determined that although Attorney Karlsson had returned some of the money, she had failed to return $100 to E.G.

¶ 11. Based on these findings, the referee concluded that by failing to promptly return, unearned retainer fees paid by or for E.G., Attorney Karlsson had violated SCR 20:1.16(d). Similarly, the referee determined that by failing to respond to three letters from the Board's investigative staff and failing to appear for the scheduled investigative interview, Attorney Karls-son had failed to cooperate with the investigation of the E.G. and C.L. grievances in violation of SCR 21:03(4) and SCR 22.07.

COUNTS SIX AND SEVEN

¶ 12. The Board's complaint alleged, and the referee found, that Attorney Karlsson had been retained by EM. to represent her in a post-judgment divorce matter in May of 1997 and that EM. paid Attorney Karlsson a $1500 fee advance. The referee further determined that after EM. provided certain material to Attorney Karlsson at her office, Attorney Karlsson had no further contact with EM. for the next year.

¶ 13. In addition, although EM. subsequently sent Attorney Karlsson three letters between June and September of 1998 requesting the return of her divorce file and a return of a portion of the advance fee, Attorney Karlsson did not reply.

¶ 14. In April of 1999 EM. obtained a $1500 small claims judgment against Attorney Karlsson; however, according to the referee's findings, Attorney Karlsson did not pay that judgment until March 2000, after the Board's investigator had contacted Attorney Karlsson about this grievance.

¶ 15. In addition, the referee determined that Attorney Karlsson failed to respond to the Board's initial letter requesting a response to the EM. grievance and that Attorney Karlsson then failed to respond to a subsequent certified letter again asking for a response. Similarly, Attorney Karlsson failed to appear at the scheduled investigative interview. When she later appeared for a rescheduled interview, the Board staff requested that she provide a response to the specific allegations of the EM. grievance within 30 days; however, despite follow-up requests, Attorney Karlsson never supplied a written response to the EM. grievance.

¶ 16. The referee concluded that by failing to promptly return EM.'s file upon request, failing to refund EM.'s retainer until almost a year after EM. had obtained the judgment against her, and failing to respond to three letters from EM. requesting the refund and return of her file, Attorney Karlsson had failed to return property to which EM. was entitled and had failed to refund any unused portion of the retainer in violation of SCR 20:1.16(d).

¶ 17. Likewise, the referee determined that by failing to respond to three letters from the Board staff and failing to appear at an investigative interview, Attorney Karlsson had not cooperated with the investigation of the EM. grievance in violation of SCR 21.03(4) and SCR 22.07.

COUNTS EIGHT, NINE, AND TEN

¶ 18. The Board's complaint alleged, and the referee found, that in July 1994 Attorney Karlsson was retained by C.M. to represent her in a personal injury claim stemming from a July 7, 1994, automobile accident. In March 1997, nearly four months before the statute of limitations on C.M.'s personal injury claim was to expire, C.M. forwarded the final medical bill related to the accident to Attorney Karlsson along with a letter requesting information on the status of the case. Attorney Karlsson did not respond to that letter or to C.M.'s follow-up letters in July 1997 and October 1997.

¶ 19. C.M. and her husband thereafter made a series of telephone calls to Attorney Karlsson and sent her another letter in May of 1998; again Attorney Karlsson made no response to the calls or letters.

¶ 20. The referee also determined that Attorney Karlsson had failed to send a demand letter to the insurance company involved in C.M.'s claim before the statute of limitations on that claim expired.

¶ 21. In addition, the referee determined that Attorney Karlsson had failed to respond to letters from the Board staff including certified requests for responses; likewise, she failed to appear for the scheduled investigative interview and when she later appeared at the rescheduled interview and was asked to file a written response, she again failed to do so despite the Board's follow-up request.

¶ 22. Based on these findings, the referee concluded that by allowing the statute of limitations to run on C.M.'s claim without making discernible efforts towards settlement, Attorney Karlsson had failed to act with reasonable diligence and promptness in representing C.M. in violation of SCR 20:1.3.

¶ 23. Likewise, the referee concluded that by failing to respond to four letters and numerous telephone calls from C.M. requesting information about her case, and by failing to inform C.M. that the statute of limitations had run on her claim, Attorney Karlsson had failed to keep C.M. reasonably informed about the status of the matter and had failed to comply with C.M.'s reasonable requests for information in violation of SCR 20:1.4(a).

¶ 24. In addition, the referee concluded that Attorney Karlsson's failure to respond to letters from the Board staff and her failure to appear for the investigative interview concerning the investigation into C.M.'s grievance, was a violation of SCR 21.03(4) and SCR 22.07.

COUNTS ELEVEN, TWELVE, THIRTEEN, AND FOURTEEN

¶ 25. The Board's complaint alleged, and the referee found, that in February of 1993 Attorney Karlsson was retained by D.C. to represent him in a bankruptcy matter; D.C. paid Attorney Karlsson $800 as a retainer. The retainer agreement provided that it was "for bankruptcy ... flat fee." Thereafter D.C. met with Attorney Karlsson on three occasions to complete the necessary paperwork. Subsequently D.C. made what he estimated to be 30 to 40 phone calls to Attorney Karlsson seeking information about the bankruptcy matter. Attorney Karlsson's own message slips in her office file for the D.C. bankruptcy reflect that she had failed to respond to at least four or five of D.C.'s calls.

¶ 26. The referee determined that after six years, D.C.'s bankruptcy still had not been filed. At that point D.C. contacted an attorney who had shared office space with Attorney Karlsson. That attorney attempted to assist D.C. in obtaining the return of the retainer and paperwork. That other attorney contacted Attorney Karlsson and urged her to complete the bankruptcy or refund the retainer. Attorney Karlsson responded that she would "take care of it." However, Attorney Karlsson never filed the bankruptcy matter on behalf of D.C. and never refunded the $800 retainer fee to him.

¶ 27. In addition, the referee determined that when the Board's investigative staff asked Attorney Karlsson to respond to D.C.'s grievance, she did not do so; a subsequent certified letter made a similar request and again Attorney Karlsson did not respond, nor did she provide a written response as requested when she later met with the Board's investigator.

¶ 28. Based on these findings, the referee concluded that Attorney Karlsson's failure to take appropriate steps to advance the D.C. bankruptcy for almost seven years and her failure to file the bankruptcy action during the time she was representing D.C., established that Attorney Karlsson had failed to act with reasonable diligence and promptness in representing D.C. in violation of SCR. 20:1.3.

¶ 29. In addition, the referee concluded that by failing to respond to numerous telephone calls from D.C. and failing to write to him after mid-1993, Attorney Karlsson had failed to comply with her client's reasonable requests for information and failed to keep him reasonably informed about the status of the matter in violation of SCR 20:1.4(a).

¶ 30. Furthermore, the referee concluded that by failing to respond to two investigative letters from the Board's staff, Attorney Karlsson had failed to cooperate in the investigation of the D.C. grievance in violation of SCR 21.03(4) and SCR 22.07.

¶ 31. In addition, the referee concluded that Attorney Karlsson's failure to refund any portion of D.C.'s $800 retainer, even though she had never completed or even filed the bankruptcy, and her failure on termination of her representation of D.C. to refund any of the unearned portion of the retainer, violated SCR 20:1.16(d).

COUNTS FIFTEEN, SIXTEEN, AND SEVENTEEN

¶ 32. The Board's complaint alleged, and the referee found, that in October of 1993 EM. retained Attorney Karlsson to represent him in a personal injury action stemming from injuries EM. had sustained on October 2,1993. Attorney Karlsson subsequently filed a personal injury action on behalf of EM. on October 2, 1996. The defendant in that personal injury action then moved to dismiss it for failure to prosecute and for failure to answer written discovery requests, failure to appear at scheduled depositions, and failure to file a witness list.

¶ 33. At the public hearing before the referee in this matter, Attorney Karlsson and her former client, EM., presented conflicting testimony as to whether Attorney Karlsson had communicated with EM. about the defense discovery requests; also disputed was the question of whose fault it was that the discovery requests had not been answered in the EM. case. The referee determined that even though the motion to dismiss the personal injury action had been denied, the circuit court had assessed $498 in costs against EM. Attorney Karlsson, however, never notified EM. of that assessment of costs.

¶ 34. At the public hearing in this matter, EM. testified that he had been unsuccessful in obtaining a response from Attorney Karlsson about the status of his personal injury case after his deposition had been taken in the fall of 1997. Attorney Karlsson, on the other hand, claimed that she had kept EM. reasonably informed about the status of the case through May of 1998.

¶ 35. The circuit court in the personal injury action ultimately granted summary judgment against EM. as to all but one of the defendants and judgment was entered against EM. for costs in the amount of $412.34. Although the default judgment in favor of EM. against the remaining defendant in the amount of $5000 was later granted, Attorney Karlsson never prepared an order for the circuit court's signature and that judgment was never entered, nor did she inform EM. about that judgment. When EM. later received information that his personal injury action had been resolved, he and his father made numerous telephone calls to Attorney Karlsson in May and June of 1999 seeking information about the status of his case. EM. also sent Attorney Karlsson a certified letter asking for information but she did not respond.

¶ 36. The referee determined that the Board's investigative staff sent an initial letter to Attorney Karlsson asking her to respond to EM.'s grievance but she did not do so. Subsequently two other similar letters were sent by certified mail to Attorney Karlsson asking for her to respond to this grievance, and again she failed to do so.

¶ 37. Likewise, the referee found that after the EM. grievance was referred to a district responsibility committee, an investigator from that committee attempted to call Attorney Karlsson six times during April and May 2000 but Attorney Karlsson never returned any of the telephone calls and never provided a response to the EM. grievance investigation. The referee determined that, in fact, Attorney Karlsson had never provided any information regarding the EM. grievance until this disciplinary proceeding was commenced.

¶ 38. Based on these findings, the referee concluded that Attorney Karlsson's failure to respond to numerous telephone calls made by or on behalf of EM. inquiring as to the status or outcome of his personal injury action, constituted a failure to keep her client reasonably informed about the status of the matter and her failure to respond to a client's reasonable request for information in violation of SCR 20:1.4(a).

¶ 39. In addition, the referee concluded that by failing to respond to several letters from the Board's staff and failing to respond to at least six telephone messages from the district committee's investigator, Attorney Karlsson had failed to cooperate with the Board's investigation of the EM. grievance in violation of SCR 21.03(4) and SCR 22.07.

COUNTS EIGHTEEN AND NINETEEN

¶ 40. The Board's complaint alleged, and the referee so found, that in January 1996 Attorney Karlsson was retained by D.D. to represent her in a partition action involving real estate D.D. had purchased with a friend. After she was retained by D.D., Attorney Karls-son contacted the parties in the real estate transaction and discovered that the land contract had never been recorded. Attorney Karlsson on behalf of her client, D.D., recorded the land contract and wrote several letters to opposing parties but the matter was not resolved at that time.

¶ 41. The referee found that more than three years after she had been retained, Attorney Karlsson met with D.D. to review the summons and complaint Attorney Karlsson had drafted in the partition action. Several months later Attorney Karlsson informed D.D. that she was winding down her law practice and that she would refer the partition matter to another attorney. The referee determined, however, that Attorney Karlsson never referred the partition case to another attorney and never filed the summons and complaint she had drafted on D.D.'s behalf.

¶ 42. After D.D. filed a grievance, the Board's investigative staff wrote three letters, two by certified mail, asking Attorney Karlsson to respond but she never did. In addition, at the subsequent investigative interview, the Board's staff requested Attorney Karls-son to provide copies of her activities/telephone logs in D.D.'s case; that request was repeated in a follow-up letter but Attorney Karlsson never supplied the telephone logs.

¶ 43. Based on these findings, the referee concluded that by failing to either settle D.D.'s claim, file suit, or refer the matter to another attorney for over four years, Attorney Karlsson had failed to act with reasonable diligence and promptness in representing D.D. in violation of SCR 20:1.3.

¶ 44. In addition, the referee concluded that by failing to respond to several letters from the Board's staff and by failing to provide the activities/telephone logs as requested, and as she promised to do, Attorney Karlsson had failed to cooperate in the Board's investigation of the D.D. grievance in violation of SCR 21.03(4) and SCR 22.07.

¶ 45. In addition to hearing testimony concerning the various grievances in violation of the SCR, the referee also heard medical evidence presented by Attorney Karlsson concerning her consultations with an internist, an obstetrician-gynecologist, and a psychologist. The referee determined that although Attorney Karlsson's claims of intermittent anxiety and depression were verified, the medical records and reports from the internist did not demonstrate that Attorney Karlsson's medical condition caused her to commit the misconduct with which she was charged.

¶ 46. Similarly, the referee determined that the records and reports of the obstetrician-gynecologist did not relate to Attorney Karlsson's specific work performance, nor did they establish that her medical condition caused her to commit the misconduct.

¶ 47. With respect to the psychologist's report, the referee noted that the psychologist never offered a clear opinion of causality with respect to the majority of the misconduct counts at issue and that in any event, the psychologist's opinions were, according to the referee, "somewhat unclear." Accordingly, the referee discounted the psychologist's reports and opinion because of inconsistencies and the lack of detail in the records; the referee observed that the psychologist had made no notes or records for any meetings with Attorney Karls-son that had taken place before this disciplinary matter was commenced. Also, the referee noted that the psychologist's records did not reflect any meeting at all with Attorney Karlsson during the year 1999 which was the year during which attorney Karlsson had repeatedly failed to cooperate with the Board's investigations.

¶ 48. The referee concluded that the psychologist's diagnosis did not adequately establish causation for Attorney Karlsson's failings with respect to the seven client files at issue in this proceeding, especially since Attorney Karlsson had been able to maintain and represent other clients during this period when she was purportedly suffering from anxiety and depression.

¶ 49. Based on his findings and conclusions, the referee rejected Attorney Karlsson's suggestion that as a penalty for her misconduct in this matter, she be subjected to monitoring by the Board and mentoring by other attorneys. The referee also rejected Attorney Karlsson's claim that her non-cooperation with the Board's investigation had been caused by her illness, and therefore no restitution should be ordered and any costs in this matter should be waived.

¶ 50. Instead, the referee, based on his findings and conclusions of the 19 counts of misconduct, recommended that Attorney Karlsson's license to practice law be suspended for a nine-month period and that the following conditions be met before her license could be reinstated: (1) that Attorney Karlsson be required to refund the $800 retainer fee paid by D.C. for his bankruptcy proceeding; (2) that she be required to refund $100 she received in the E.G. case; (3) that for a period of two years after reinstatement Attorney Karls-son must arrange for another attorney, approved by the OLR director, to monitor Attorney Karlsson's practice in quarterly meetings with her at which the status of all of Attorney Karlsson's client files will be reviewed and the monitoring attorney will then submit quarterly reports to the OLR on the status of all pending matters in Attorney Karlsson's practice; and (4) that Attorney Karlsson pay the costs of this disciplinary matter within six months of this court's order and that if she fails to do so and fails to show an inability to pay the costs within that time, that she not be allowed to seek reinstatement of her license to practice law.

¶ 51. The findings of the referee are not clearly erroneous and we adopt them. We also agree with the conclusions of law set forth in the referee's report and his recommendation for sanctions. Attorney Karlsson's misconduct with respect to the handling of the seven client grievances and her failure to cooperate with the Board's investigation are serious failings warranting a suspension of her license. We believe a nine-month suspension of her license to practice law in this state is appropriate discipline for her professional misconduct.

¶ 52. IT IS ORDERED that the license of Kathryn E Karlsson to practice law in Wisconsin is suspended for a period of nine months, effective January 4, 2002.

¶ 53. IT IS FURTHER ORDERED that Kathryn E Karlsson comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 54. IT IS FURTHER ORDERED that Kathryn E Karlsson refund, within 60 days of the date of this order, with interest at 5%, the $800 paid to her by her client D.C. for his bankruptcy proceeding and $100 of the retainer she received in the E.G. matter. If these refunds are not made within the specified time, the license of Kathryn E Karlsson to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 55. IT IS FURTHER ORDERED that within six months of the date of this order Kathryn E Karlsson pay to the Office of Lawyer Regulation, as successor to the Board of Attorneys Frofessional Responsibility, the costs of this disciplinary proceeding totaling $17,923.83. If the costs are not paid within the time specified and absent a showing to this court of her inability to pay the costs within that time, the license of Kathryn E Karlsson to practice law in Wisconsin shall remain suspended until further order of the court.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation ("OLR") and the supreme court rules applicable to the lawyer regulation system were also revised in part. Because the misconduct underlying this case arose prior to October 1, 2000, the investigative body will be referred to as "the Board" and all references to supreme court rules will be to those in effect prior to October 1, 2000, unless otherwise noted.

       SCR 22.13(3) (effective October 1, 2000) provides in pertinent part:

       SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

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

       Former SCR 21.03(4) provided that "[e]very attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator."

        Former SCR 22.07 provided: Investigation
      (1) The administrator shall investigate any matter under the board's jurisdiction.
      (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.
      (3) The administrator or committee may compel the respondent to answer questions, furnish documents and present any information deemed relevant to the investigation. Failure of the respondent to answer questions, furnish documents or present relevant information is misconduct. The administrator or a committee may compel any other person to produce pertinent books, papers and documents under SCR 22.22.
      (4) The duty of the respondent to cooperate with the board's investigation does not affect the respondent's privilege against self-incrimination, but the privilege may he claimed only in respect to matters which may subject the respondent to criminal liability.
      (5) A committee shall report to the administrator the result of each investigation assigned to it and may make a recommendation for disposition of the matter. The administrator shall report the result of each investigation to the board and make a recommendation for disposition of the matter. If the administrator does not recommend dismissal of the grievance, the administrator shall first prepare an investigative report and provide a copy to the grievant and to the respondent. The grievant and the respondent may submit a written response to the report no later than 10 days following receipt of the report. The administrator shall then report the result of the investigation to the board, including any response submitted by the grievant or the respondant.

       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.

       This individual is not the same EM. involved in counts six and seven discussed above.


text:
    In the Matter of Disciplinary Proceedings Against Christopher L. O'Byrne, Attorney at Law. Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Christopher L. O'Byrne, Respondent.
    Supreme Court

      No. 01-0765-D.

      Filed November 21, 2001.

    2001 WI 121
    (Also reported in 635 N.W.2d 598.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Christopher L. O'Byrne's license to practice law in Wisconsin be suspended for 60 days for professional misconduct in the handling of an estate. The referee also recommended that Attorney O'Byrne be required to pay the costs of the proceeding.

¶ 2. We determine that the seriousness of Attorney O'Byrne's professional misconduct warrants a suspension of his license to practice law for 60 days.

¶ 3. Attorney O'Byrne was admitted to practice law in Wisconsin in 1986 and practices in Port Washington. In 1994 Attorney O'Byrne consented to a public reprimand for misconduct consisting of engaging in conduct involving dishonesty and misrepresentation, failing to disclose facts necessary to correct a misapprehension, failing to fairly and fully disclose all facts and circumstances pertaining to an investigation, and failing to respond to a client's reasonable requests for information.

¶ 4. The complaint filed by the Office of Lawyer Regulation (OLR) alleged misconduct with respect to Attorney O'Byrne's handling of an estate. The decedent died on November 22, 1995. An application for informal administration was filed on February 15,1996. The decedent's son was appointed personal representative on March 18, 1996. Attorney O'Byrne was retained as attorney for the estate. The decedent's son died on April 17, 1996, and a successor personal representative was appointed on May 10, 1996.

¶ 5. The estate inventory was filed on November 18, 1996. The estate became delinquent in August of 1997. On September 24, 1997, an order to show cause why the estate was not closed was issued by the circuit court. A series of orders to show cause were issued through January of 2001. On March 13, 2001, over five years after the estate was opened, it still had not been closed. The circuit court issued an order of removal discharging Attorney O'Byrne as attorney for the estate.

¶ 6. Attorney O'Byrne did not file an answer to the OLR's complaint. In February 2001 the OLR filed a motion requesting issuance of an order to show cause why Attorney O'Byrne's license should not be suspended for his willful failure to cooperate or respond to two other grievances. An order to show cause was issued. Attorney O'Byrne failed to respond to the order to show cause. On April 3, 2001, this court issued an order temporarily suspending Attorney O'Byrne's license to practice law for failing to respond or cooperate with the other OLR investigations. That suspension remains in force.

¶ 7. On May 17, 2001, the OLR's motion for default judgment was heard. Attorney O'Byrne's counsel stipulated that a default judgment could be entered. The referee, John A. Fiorenza, issued a report concluding that Attorney O'Byrne failed to act with reasonable diligence and promptness in representing the estate, thereby violating SCR 20:1.3. The referee also found that Attorney O'Byrne failed to cooperate with the OLR in the investigation of the grievance, thereby violating former SCR 21.03(4) and former SCR 22.07(2) and (3).

¶ 8. We adopt the referee's findings of fact and conclusions of law. Attorney O'Byrne's misconduct with respect to his handling of the estate and his failure to cooperate with the OLR's investigation are serious failings warranting a suspension of his license. A 60-day suspension of his license to practice law is appropriate discipline for his professional misconduct.

¶ 9. IT IS ORDERED that the license of Christopher L. O'Byrne to practice law in Wisconsin is suspended for a period of 60 days, effective December 26, 2001.

¶ 10. IT IS FURTHER ORDERED that Christopher L. O'Byrne comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 11. IT IS FURTHER ORDERED that within 60 days of the date of this order Christopher L. O'Byrne pay to the OLR the costs of this proceeding. If the 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 Christopher L. O'Byrne to practice law in Wisconsin shall remain suspended until further order of the court.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation ("OLR") and the supreme court rules applicable to the lawyer regulation system were also revised. Even though most of the conduct giving rise to the complaint occurred prior to October 1, 2000, the investigative body will be referred to as the "OLR." The references to supreme court rules will be to those currently in effect unless specifically noted.

       SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

       Former SCR 21.03(4) provided that "[e]very attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator."

       Former SCR 22.07(2) and (3) provided:
      (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.
      (3) The administrator or committee may compel the respondent to answer questions, furnish documents and present any information deemed relevant to the investigation. Failure of the respondent to answer questions, furnish documents or present relevant information is misconduct. The administrator or a committee may compel any other person to produce pertinent books, papers and documents under SCR 22.22.


text:
    In the Matter of Disciplinary Proceedings Against James H. Dumke, Attorney at Law: Office of Lawyer Regulation, Complainant, v. James H. Dumke, Respondent.
    Supreme Court

      No. 01-1338-D.

      Filed November 21, 2001.

    2001 WI 122
    (Also reported in 635 N.W.2d 594.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney James H. Dumke's license to practice law in Wisconsin be suspended for two years for professional misconduct consisting of failing to provide competent representation to a client in violation of SCR 20:1.1. The referee also recommended that Attorney Dumke he required to pay the costs of this disciplinary proceeding.

¶ 2. We determine that the seriousness of Attorney Dumke's professional misconduct, plus his failure to respond and cooperate in this disciplinary investigation and proceeding, warrant a suspension of his license to practice law for two years.

¶ 3. Attorney Dumke was admitted to practice law in Wisconsin in 1983 and, until his license was suspended in 1998, practiced in Janesville. This is the sixth time that he will be disciplined for breach of his professional obligations and violation of the court's rules governing the professional conduct of attorneys.

¶ 4. On May 17, 2001, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Dumke alleging the one count of professional misconduct described above. Despite repeated notifications and requests, Attorney Dumke did not file an answer to the complaint, nor did he respond to numerous attempts to contact him about it. Consequently, the OLR filed a motion for default judgment and served Attorney Dumke with that motion. In addition, the referee appointed in this matter, Attorney Rose Marie Baron, repeatedly, but unsuccessfully, attempted to contact Attorney Dumke by letter and telephone advising him of an upcoming telephonic scheduling conference and asking that he contact her and provide a telephone number where he could be reached for that conference call. Attorney Dumke, however, did not do so and did not participate in the telephonic scheduling conference that was held. As a result, the referee entered a default judgment pursuant to SCR 22.15(1), based on Attorney Dumke's failure to file an answer to the OLR complaint, his failure to participate in the scheduling conference and his failure to otherwise cooperate in the disciplinary proceedings.

¶ 5. The referee thereafter filed findings of fact and conclusions of law and a recommendation for disciplinary sanctions against Attorney Dumke. Neither Attorney Dumke nor the OLR have appealed the referee's report and recommendation.

¶ 6. The referee's findings and conclusions tracked the OLR's complaint which alleged Attorney Dumke's misconduct relating to his representation of a client, Robert E, who had been convicted in 1986 of first-degree sexual assault and sentenced to 16 years in prison. On October 1, 1996, before Robert E had reached his mandatory release date, the state filed a petition under Wis. Stat. ch. 980 alleging that Robert E was a sexually violent person. Robert E then retained Attorney Dumke to represent him in the sexual predator proceedings. Robert E's mother paid Attorney Dumke a retainer fee of $5000.

¶ 7. After a probable cause hearing on the ch. 980 petition, Robert E was placed in secure custody at the Wisconsin Resource Center. Attorney Dumke requested a lengthy continuance of the matter asserting that he wanted an expert to review the state's report supporting the ch. 980 petition concerning his client. Attorney Dumke stated that he would inform the court when he was ready to proceed in the matter. His request for a continuance was granted on November 15, 1996.

¶ 8. Circuit court records reflect that no further activity in the ch. 980 proceedings against Robert E occurred during the first half of 1997. Subsequently the Robert E matter was assigned to Dane County Circuit Judge Sarah O'Brien and scheduled for trial to commence on October 30, 1997. On that scheduled trial date Robert E appeared represented by Attorney Dumke. Robert E then waived his right to trial and admitted the allegations in the sexual predator petition. As a result, Robert E was found to be subject to commitment under ch. 980. At a subsequent disposi-tional hearing, Robert E, again represented by Attorney Dumke, stipulated to being confined at a secure mental health facility for treatment.

¶ 9. In November 1998 Attorney Dumke withdrew from the Robert E matter. Successor counsel was appointed and an appeal was filed. Robert E's new counsel also filed a motion asking the appellate court to remand the matter to the circuit court for a hearing on a claim of ineffective assistance of counsel against Attorney Dumke. That remand motion was granted and an evidentiary hearing on that claim was held in the circuit court at which Attorney Dumke, Robert E, and two experts testified.

¶ 10. The OLR disciplinary complaint against Attorney Dumke in this matter alleged, and the referee so found, that before being retained by Robert E, Attorney Dumke had not previously represented a ch. 980 client or otherwise handled a ch. 980 case. Attorney Dumke knew, however, that his client was entitled to an expert witness in the ch. 980 proceedings and also knew that his client was entitled to a court-appointed expert. The OLR's complaint against Attorney Dumke alleged, and the referee so found, that Robert E's mother told Attorney Dumke that she would be willing tó hire an expert on her son's behalf if one were needed. Attorney Dumke, however, never arranged for an expert to testify on Robert E's behalf in the ch. 980 proceeding.

¶ 11. The referee also found that Attorney Dumke was unfamiliar with the testing methods and risk analysis on which the state's experts in the ch. 980 proceedings had based their opinions that Robert E was a sexually violent person. Furthermore, the referee determined that Attorney Dumke had no experience in cross examining experts on those subjects and that he never reviewed with Robert E the risk factor analysis or other instruments used by the state's experts in ch. 980 cases. Also, the referee found that Attorney Dumke never obtained an expert or submitted any documents or reports to an expert to review either for evaluative or testimonial purposes, or to help him prepare for cross examination of the state's experts.

¶ 12. The OLR disciplinary complaint against Attorney Dumke further alleged, and the referee so found, that Attorney Dumke had failed to adequately investigate the sexual predator petition against his client, Robert E In this respect, at the hearing on the ineffective assistance of counsel claim, Judge O'Brien ruled that given the nature of the ch. 980 evidence and in light of Attorney Dumke's inexperience with that kind of evidence, he could not have performed an adequate investigation or preparation without hiring an expert for the ch. 980 proceeding.

¶ 13. In addition, the OLR alleged, and the referee so found, that Attorney Dumke's rationale for not hiring an expert in the Robert E matter — i.e. that it was "too risky" because the expert might provide an unfavorable opinion — was flawed because if Attorney Dumke had retained an expert on behalf of his client, that expert would not be required to disclose unfavorable results unless the expert testified.

¶ 14. Furthermore, the referee in this matter determined that Attorney Dumke had failed to adequately advise Robert E of the advantages and disadvantages of proceeding to trial on the ch. 980 petition. The referee noted that at the hearing on the ineffective assistance of counsel claim, Robert E asserted that if he had been informed by Attorney Dumke that there was a basis upon which to challenge the state's experts' opinions and reports at trial, Robert E would have elected to have a trial on the ch. 980 petition.

¶ 15. The referee also observed that following the evidentiary hearing on the ineffective assistance of counsel claim, the state filed a post-hearing brief in the circuit court conceding that Robert E should be granted a new dispositional hearing in the ch. 980 matter in the interest of justice.

¶ 16. In addition, the referee noted that in August 1999, Judge O'Brien ruled that Attorney Dumke's performance in representing Robert E in the ch. 980 proceedings had been deficient and that Robert E had been prejudiced by the ineffective representation. Accordingly, Judge O'Brien vacated the finding that Robert E was a sexually violent person under ch. 980 and set the matter for trial. However, before that trial commenced, the circuit court reviewed the entire record in the ch. 980 proceeding against Robert E and determined that the evidence failed to establish that Robert E was a sexually violent person. As a result, the state's ch. 980 petition against Robert E was dismissed and he was released from custody. Robert E's release occurred more than three years after his mandatory release date on his sentence imposed on the underlying criminal conviction.

¶ 17. The OLR complaint against Attorney Dumke alleged, and the referee so found, that after undertaking to represent a client in a specialized area of law with which he was unfamiliar and inexperienced, Attorney Dumke had failed to gain the requisite knowledge, do the necessary preparation, or seek appropriate assistance to enable him to provide adequate representation in the matter. Accordingly, the referee concluded that Attorney Dumke had failed to provide competent representation to a client in violation of SCR 20:1.1.

¶ 18. The referee rejected the OLR's recommendation that as an appropriate sanction, Attorney Dumke's license should be suspended for one year; instead, the referee determined that Dumke's failure to file an answer and to respond to repeated correspondence from the OLR should be taken into account and should be given great weight in assessing the appropriate discipline to be recommended. Thus, the referee recommended that, under the circumstances, Attorney James Dumke's license to practice law in this state should be suspended for a period of two years. The referee explained:

Mr. Dumke's failure to adequately represent his client [Robert E], resulted in [Robert E's] confinement in a secure mental health facility for an additional three years. The deprivation of a person's freedom because of a lawyer's incompetence shocks the conscience and brings public condemnation on the legal profession. Such an attorney's behavior goes beyond failing to return phone calls or act with reasonable diligence in representing a client — actions which have led to [Attorney Dumke's] prior one-year suspensions. The referee does not believe that another one-year suspension will have any effect on Mr. Dumke's willingness to abide by the rules set forth in SCR Chapter 20.

¶ 19. In addition to recommending a two-year suspension, the referee recommended that Attorney Dumke be required to pay the costs of these proceedings which total $1151.68.

¶ 20. We adopt the referee's findings of fact and agree with the conclusions of law set forth in the referee's report. In addition, we accept the referee's recommended two-year license suspension as an appropriate sanction reflecting the serious nature of Attorney Dumke's misconduct. Attorney Dumke's misconduct in failing to provide competent representation to his client and his failure to cooperate with the OLR investigation and proceedings are serious failings warranting a suspension of his license. We believe that a two-year suspension of Attorney Dumke's license to practice law is an appropriate discipline for his professional misconduct established in this proceeding. It is also appropriate that Attorney Dumke be required to pay the costs of this proceeding, as the referee recommended. Accordingly,

¶ 21. IT IS ORDERED that the license of James H. Dumke to practice law in Wisconsin is suspended for two years commencing this date.

¶ 22. IT IS FURTHER ORDERED that within 60 days of the date of this order, James H. Dumke pay to the Office of Lawyer Regulation the costs of this proceeding totaling $1151.68. If the 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 James H. Dumke to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 23. IT IS FURTHER ORDERED that James H. Dumke comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

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

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation ("OLR") and the supreme court rules applicable to the lawyer regulation system were also revised. Although most of the conduct giving rise to this case occurred prior to October 1, 2000, the OLR was the investigative body that filed this disciplinary complaint. References to supreme court rules in this opinion will be to those currently in effect unless specifically noted.

       Attorney Dumke is currently under a disciplinary suspension. See Disciplinary Proceedings Against Dumke, 227 Wis. 2d 340, 595 N.W.2d 703 (1999). In addition, Attorney Dumke's disciplinary record reflects a public reprimand in 1990; a six-month suspension in 1992, Disciplinary Proceedings Against Dumke, 171 Wis. 2d 47, 489 N.W.2d 919 (1992); a one-year suspension in 1998, Disciplinary Proceedings Against Dumke, 216 Wis. 2d 475, 574 N.W.2d 241 (1998); and a second suspension later in 1998, Disciplinary Proceedings Against Dumke, 221 Wis. 2d 252, 584 N.W.2d 539 (1998).

       SCR 22.15(1) provides:
      (1) The referee shall hold a scheduling conference within 20 days after the time for answer and may do so by telephone. Each party shall participate in person or by counsel. If no answer is filed, the referee may hear any motions, including a motion for default, at the scheduling conference.

       An allegation of professional misconduct against an attorney in a disciplinary proceeding may be accepted as true where the attorney has failed to answer or otherwise respond to the complaint or default motion. Disciplinary Proceedings Against Marine, 82 Wis. 2d 612, 264 N.W.2d 290 (1978); Disciplinary Proceedings Against Hamm, 79 Wis. 2d 1, 255 N.W.2d 308 (1977); and Disciplinary Proceedings Against Corning, 76 Wis. 2d 385, 251 N.W.2d 475 (1977).


author: CURLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Thomas Wenk, Defendant-Appellant.

    Court of Appeals

      No. 00-3334-CR.

      Submitted on briefs August 7, 2001.

    Decided October 2, 2001.

    2001 WI App 268
    (Also reported in 637 N.W.2d 417.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael K. Gould, assistant state public defender, of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Eileen W. Pray, assistant attorney general, of Madison.
    Before Fine, Curley and Hoover, JJ.

       Petition to review denied 1-29-02.

   CURLEY, J.

¶ 1. Thomas Wenk appeals the trial court's denial of his petition seeking a conditional release from his 1979 commitment entered after the trial court found him not guilty by reason of mental disease or defect of four felonies and found him dangerous to others, pursuant to Wis. Stat. § 971.17 (1977). Wenk argues that the trial court erroneously exercised its discretion when it determined that the State had proved by clear and convincing evidence that Wenk remained dangerous. We affirm. The trial court found that, although Wenk remained drug free while confined, Wenk's significant substance abuse problem, which triggered his previous bouts of mental illness and his criminal conduct, coupled with his drug relapse when previously released, made him dangerous. We are satisfied that this conclusion was a proper exercise of discretion despite the State's professed opinion that it may have failed to meet its burden of proof.

I. Background.

¶ 2. In October 1977, Wenk was charged with one count of attempt to entice a child for immoral purposes. He entered a plea of not guilty and not guilty by reason of mental disease or defect. While awaiting trial and out on bail, Wenk was charged with three additional felonies involving an eleven-year-old boy; one count of abduction; and two counts of first-degree sexual assault. Ultimately, Wenk withdrew his pleas of not guilty, but he maintained his pleas of not guilty by reason of a mental disease or disorder. On June 28, 1978, the trial court agreed with Wenk and found him to be not guilty as a result of his mental defect or disease. The trial court also found him dangerous and committed him to the Winnebago Mental Health Institute.

¶ 3. Wenk successfully petitioned for conditional release in 1979. However, before all the conditions permitting his release were met, Wenk was recommitted due to his failure to cooperate with officials. Wenk appealed the trial court's decision to recommit him, and this court agreed with Wenk that the recommitment proceeding was improper because Wenk was not afforded a hearing. Wenk, however, continued to be confined until April, 1985, when Wenk again petitioned the trial court and succeeded in obtaining his conditional release. Then, five years later, in 1990, Wenk waived his right to contest the motion seeking revocation of his conditional release after his probation agent instituted proceedings against him when it was discovered that Wenk had failed to remain drug-free and to abstain from contacting his ex-wife.

¶ 4. In April 2000, Wenk, then age 76, again petitioned the trial court seeking conditional release. As a result of his request, the trial court appointed two experts, Dr. George Palermo, a psychiatrist, and Dr. Kenneth Smail, a psychologist, to examine Wenk. At the hearing, the State called only one of the two experts as a witness, Dr. Kenneth Smail. Dr. Smail testified that, in his professional opinion, Wenk could be released if certain conditions were placed on him. Also admitted into evidence were Dr. Palermo's report and the report of Dr. Robert Chapman, a clinical psychologist employed by the state institution. Both of these reports recommended that Wenk be released, but only if certain conditions were placed upon him. Following the close of testimony, the assistant district attorney stated he was unsure whether he had met his burden of proof, but he urged the court to place conditions on Wenk if the trial court decided to release him.

¶ 5. The trial court, disagreeing with the doctors' ultimate recommendations, found that Wenk was still dangerous because Wenk had a long-standing substance abuse problem, and although Wenk had not abused drugs while he was confined, the trial court believed his drug relapse which occurred during his earlier conditional release indicated he still posed a danger to the community if released. The trial court commented that Wenk "would be back out in the community, could easily resort to inhalants very quickly, and at that point the community would be at risk." As a result, the trial court, in denying the petition, found that the State had met its burden of proof to a reasonable certainty by evidence that is clear, satisfactory and convincing that Wenk still remained dangerous.

II. Analysis.

¶ 6. The State, and later Wenk, points out that the applicable standard of review for the issue involved in this appeal is unclear. Case law addressing the standard of review when a jury decides a request for conditional release suggests that we must review the evidence in the light most favorable to the verdict while other cases have applied an erroneous exercise of discretion to commitment decisions. See State v. Gebarski, 90 Wis. 2d 754, 780, 280 N.W.2d 672 (1979); State v. Gladney, 120 Wis. 2d 486, 490, 355 N.W.2d 547 (Ct. App. 1984). We reaffirm the standard of review recently set forth in State v. Seibert, 220 Wis. 2d 308, 582 N.W.2d 745 (Ct. App. 1998), a case involving a sexual predator commitment under Chapter 980 of the Wisconsin Statutes (1997-98). There, we stated that a trial court's decision whether to grant a request for conditional release is subject to a discretionary standard of review. Id. at 314. Consequently, we look to see whether the trial court properly exercised its discretion in its determination that Wenk remained dangerous.

¶ 7. Wenk argues that the trial court erred in its determination that the State met its burden in proving his release would pose a risk of bodily harm to himself or others. As support for his position, Wenk first notes that the State admitted it had failed to met its burden of proof and urged the trial court to place restrictions on Wenk after he was released. Wenk also maintains that not only did the sole testifying expert witness support his petition for release, but also all the expert witnesses who examined him opined that he could be released under certain conditions. We are unpersuaded by his arguments.

¶ 8. We first observe that a factual finding is not clearly erroneous merely because a different fact-finder could draw different inferences from the record. See State v. Friday, 147 Wis. 2d 359, 370-71, 434 N.W.2d 85 (1989) (stating that it is not within the province of an appellate court to choose not to accept an inference drawn by a fact finder when the inference is reasonable). Thus, while our independent view of the evidence may have led us to a different result, we are bound to accept the trial court's inferences unless they are incredible as a matter of law. State v. King, 187 Wis. 2d 548, 562, 523 N.W.2d 159 (Ct. App. 1994). The trial court's findings are not incredible.

¶ 9. First, the trial court was free to disregard the State's view of its evidence. The opinion of counsel, including the State's attorney, is not evidence. See Wis JI — Criminal 157 & 160. We note this is not a situation where the State failed to call any witnesses or submitted no evidence for the trial court's consideration; rather, the State presented an expert witness and had two other doctors' reports admitted into evidence. Second, the trial court was not obligated to accept any of the experts' opinions, even if the opinion was uncontra-dicted. State v. Kienitz, 227 Wis. 2d 423, 438-39, 597 N.W.2d 712 (1999). A trier of fact has the right to accept as much or as little of an expert's opinion as it finds probative. Gebarski, 90 Wis. 2d at 780. Here, the trial court accepted some parts of the doctors' opinions, but not all. Like the jury in Pautz v. State, 64 Wis. 2d 469, 219 N.W.2d 327 (1974), the trial court was free to disregard the experts' opinions and had a basis for doing so. See id. at 474-76. Our review of the reports satisfies us that the trial court, acting as the gatekeeper in Wenk's request for a conditional release, properly exercised its discretion in rejecting the three experts' opinions.

¶ 10. None of the doctors believed Wenk should be unconditionally released. Each recommended his release only under certain conditions. In Dr. Chapman's report, the doctor noted that Wenk had been previously diagnosed as suffering from bipolar disorder, as well as inhalant dependence. Dr. Chapman reasoned that Wenk could be conditionally released because Wenk's mental illness appeared to be in remission. With regard to Wenk's addiction to Toluene, a paint thinner, Dr. Chapman acknowledged that Wenk used this drug when he engaged in his sexual criminal conduct, but Dr. Chapman's report contains the mistaken entry that "[d]uring the four years he was on conditional release [Wenk] reported no temptation to inhale, basically not thinking about inhaling Toulene [sic]." This is absolutely incorrect. Wenk's records clearly show that Wenk was recommitted, in part, as a result of his probation agent's discovery of his drug addiction. Consequently, the doctor's opinion that Wenk could be conditionally released was premised on his mistaken belief that Wenk had no difficulty with drugs during his previous release. Either Wenk minimized his Toluene abuse when discussing his history with Dr. Chapman, or Dr. Chapman failed to investigate the record. In either event, the trial court's failure to embrace Dr. Chapman's opinion was proper.

¶ 11. Dr. Smail also addressed Wenk's addiction. Dr. Smail testified that Wenk's inhalant dependence was in remission, but the doctor did admit that all of Wenk's criminal acts took place while he was under the influence of Toluene. Dr. Smail's recommendation in favor of conditional release was also based on Wenk's statement to him that "he had no personal concerns about re-offending or resuming his abuse of inhalants." This self-serving opinion was not only overly optimistic, but also, given Wenk's past conduct, not borne out by Wenk's history. Again, the trial court could properly reject Dr. Smail's opinion.

¶ 12. Finally, Dr. Palermo's report also commented on Wenk's drug use. The doctor notes that Wenk claimed that " T was so damned addicted I couldn't stop it,'" and that Wenk "blamed his addiction for his offense in 1978." Dr. Palermo's report acknowledged that Wenk was abusing drugs when recommitted, but notwithstanding this history, Dr. Palermo recommended that Wenk be conditionally released, although he failed to set forth in his report any conditions which needed to be imposed on Wenk when he was released. This gaping hole in Dr. Palermo's report could easily have caused the trial court to lack confidence in the doctor's opinion.

¶ 13. Thus, while all three doctors expressed their knowledge of Wenk's previous drug use, the reasons underlying their opinions that Wenk could be released despite this impediment were either wrong or based on shaky grounds.

¶ 14. The differences of opinion between the doctors and the trial court lay with their prediction of Wenk's likely behavior when released. The trial court remarked that, although Wenk had not abused drugs for ten years, his sexual assaults were directly related to his mental illness brought on by his use of inhalants. Despite the doctors' beliefs that Wenk would not resort to drug use, the trial court observed that Wenk did abuse drugs the last time he was released. While the trial court acknowledged that predicting a person's future behavior is a difficult task, it ppinted out that the past predictions of the psychiatric experts were wrong. Further, the trial court stated that its prediction for Wenk's future behavior was based on his past conduct; conduct that strongly suggested it was quite likely Wenk would again abuse drugs, given the pattern that emerged whenever Wenk was not confined.

I don't think that there's an adequate showing that he is beyond the - resorting to the use of those inhalants. On the contrary, again, the doctors say the primary concern is that historic inhalant use, and I don't think that there's a sufficient basis that I can find that there would be sufficient safeguards that the defendant would not be resorting to that inhalant abuse such that he would not be reverting to the previous conduct.

¶ 15. The trial court was concerned that Wenk's pattern of abusing drugs when unconfined posed too great a danger for the community for him to be released. The trial court's cogent decision, carefully setting out the legal standard and thoroughly explaining its analysis, is supported by the record. Thus, we affirm.

By the Court. —Order affirmed.

       A plea of not guilty by reason of mental disease or defect when not joined with a plea of not guilty, meant that Wenk admitted that but for lack of mental capacity he committed all the essential elements of the charged offenses. See Wis. Stat. § 971.06(d) (1977).