author: PER CURIAM.

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

      No. 02-0496-D.

      Decided September 11, 2002.

    2002 WI 112
    (Also reported in 650 N.W.2d 551.)
   PER CURIAM.

¶ 1. We review the referee's recommendation that Attorney Susan M. Cotten's license to practice law in Wisconsin be suspended for one year for professional misconduct. That misconduct consists of failing to employ the requisite legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation of a client; failing to act with reasonable diligence and promptness in representing a client; failing to keep a client reasonably informed about the status of a matter; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; failing to withdraw from representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; and failing to cooperate with the Office of Lawyer Regulation's (OLR) grievance investigators. The referee also recommended that Attorney Cotten be required to pay restitution to the client and that she pay the costs of the proceeding.

¶ 2. We determine that the seriousness of Attorney Cotten's professional misconduct warrants a suspension of her license to practice law for one year.

¶ 3. Attorney Cotten was admitted to practice law in Wisconsin in 1995 and practiced in Madison. On June 5, 2000, her license to practice law in Wisconsin was suspended for noncompliance with Continuing Legal Education (CLE) requirements. On April 4, 2001, this court suspended her license for six months, effective May 8, 2001, as discipline for professional misconduct consisting of failing to act with reasonable diligence and promptness in representing a client; failing to keep a client reasonably informed of the status of a matter, and failing to promptly comply with reasonable requests for information; failing to take steps to the extent reasonably practicable to protect the interests of a client; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and failing to cooperate with the investigation into her misconduct. In re Disciplinary Proceedings Against Cotten, 2001 WI 29, 242 Wis. 2d 117, 624 N.W.2d 360. On May 21, 2001, this court suspended Attorney Cotten's license after she failed to respond to an order to show cause relating to her willful failure to cooperate with the investigation of a grievance. She has not sought reinstatement from any of those suspensions.

¶ 4. The complaint filed by OLR alleged misconduct with respect two former clients. The first client hired Attorney Cotten in 1998 to file and prosecute a legal malpractice action against Attorney J.O. The client had hired Attorney J.O. in June 1989 to represent her in connection with a claim that she had filed with the State of Wisconsin in 1988, relating to her prior employment with the state. In October 1991 Attorney J.O. notified the state that he was withdrawing the client's complaint and that he would instead be filing an action in state or federal court. No lawsuit was ever filed. In February 1993 Attorney J.O. wrote to the client that he had decided it was not in her best interest to prosecute the case. The client was subsequently informed by another attorney that the statute of limitations on her claim had expired prior to February 1993.

¶ 5. On October 2, 1998, Attorney Cotten filed a lawsuit against Attorney J.O. on the client's behalf in Dane County Circuit Court. Attorney Cotten actively prosecuted the lawsuit from October 1998 through the summer of 1999. Beginning in August of 1999 Attorney Cotten essentially stopped working on the case. She failed to respond to discovery requests sent by Attorney J.O.'s counsel and failed to attend several motion hearings regarding discovery brought by Attorney J.O.'s attorney between September and December 1999. During this time Attorney Cotten assured the client that the case was moving along smoothly and that the discovery requests were irrelevant and responses were not required.

¶ 6. During a hearing on November 30, 1999, Attorney Cotten informed the court that she was battling clinical depression and that she had been unable to function during the end of September and all of October 1999, including not being able to answer phone calls, open mail, or attend any court appearances. The court allowed her an opportunity to provide medical evidence that would justify her conduct, and the case was adjourned to December 21, 1999.

¶ 7. Attorney Cotten failed to submit any medical evidence or to appear at the December 21, 1999, hearing. The court granted Attorney J.O.'s dismissal motion based on Attorney Cotten's failure to appear and the lack of response to discovery requests. The court stated it found Attorney Cotten's delays to be "egregious," in spite of her purported medical difficulties.

¶ 8. Attorney Cotten moved to reopen the case, saying she had missed the December 21, 1999, hearing due to car trouble. She also submitted a letter from her physician. During a hearing on January 10, 2000, Attorney Cotten admitted to the court that she had not informed the client that her case had been dismissed in December 1999. She also told the court that when she took the case she believed her depression was under control with medication and therapy. She said she subsequently underwent another depression in the fall of 1999 in which she became even more depressed. She said she and her physician were going to experiment with medications and that she was going to focus on finishing up her pending cases and not accept new ones.

¶ 9. During another hearing on January 20, 2000, with the client present, the circuit court vacated the dismissal order and awarded actual costs against the client. The court also instructed the client to find replacement counsel within 30 days of the hearing. The client did retain successor counsel but, according to the circuit court, the successor attorney also failed to effectively represent the client.

¶ 10. Attorney Cotten and the client's successor counsel both appeared at a hearing on April 6, 2000. Attorney Cotten brought with her several boxes of documents that she had been ordered to produce months earlier. Attorney J.O.'s counsel renewed his motion to dismiss the case for failure to respond to previous discovery requests, and the court granted the motion with prejudice. During the hearing Attorney J.O.'s counsel asserted that the answers to interrogatories prepared by Attorney Cotten were so incomplete that it represented a failure to prosecute the case.

¶ 11. The circuit court commented that Attorney Cotten's answers to the interrogatories were so unresponsive that they were "astonishing." The court concluded Attorney Cotten lacked experience and knowledge and understanding of the duty of plaintiffs counsel to respond to interrogatories. The court further concluded that Attorney Cotten's inability to prepare the answers to interrogatories went beyond mental illness and evinced a lack of understanding on her part as to what counsel is supposed to do when answers to interrogatories are overdue. The court stated that Attorney Cotten had provided ineffective assistance of counsel.

¶ 12. In granting Attorney J.O.'s motion to dismiss the circuit court recognized that Attorney Cotten was suffering from a mental illness that impacted her ability to represent her client. At the same time the court strongly chastised both Attorney Cotten and successor counsel for their egregious failure to respond to the written interrogatories or timely produce requested documents, for ineffective assistance of counsel throughout the proceedings, for failure to prosecute the case, and for failure to understand court orders. The court assessed costs against the client and entered a judgment against her. The costs were subsequently waived by Attorney J.O.

¶ 13. In May and June 2000 the client sent letters to Attorney Cotten attempting to arrange to retrieve her file, which included several audiotapes. Attorney Cotten delivered documents to the client on May 16, 2000, but did not return the tapes. The client made numerous calls to Attorney Cotten from July through December 2000 attempting to get the tapes.

¶ 14. In October of 2000 the client filed a grievance against Attorney Cotten. On December 14, 2000, an OLR staff investigator sent a copy of the grievance by first-class mail to Attorney Cotten at the address where she had maintained a law office in her home prior to the June 2000 CLE suspension. The letter informed Attorney Cotten that she was required to provide a written response on or before January 8, 2001, and informed her of her duty to cooperate with OLR's investigation. No response was received.

¶ 15. On January 10, 2001, the OLR investigator sent a follow-up letter to Attorney Cotten by certified mail, reminding her of her duty to cooperate and the possible consequences of not cooperating. The letter was returned to OLR's office marked "unclaimed-return to sender." On February 19, 2001, Attorney Cotten's husband was personally served at their residence with a letter to Attorney Cotten from OLR dated February 15, 2001, and with copies of the grievance and the letters that OLR had previously sent her. Attorney Cotten telephoned the staff investigator to request a meeting involving Attorney Cotten, her therapist and OLR staff. After discussing the request with an OLR supervisor the staff investigator left a message in Attorney Cotten's voicemail informing her of OLR's opinion that a face-to-face meeting might not be the best way to further the investigation and asking her to call to discuss the matter further. Attorney Cotten failed to reply.

¶ 16. On March 7, 2001, OLR staff sent a letter to Attorney Cotten by certified and first-class mail describing OLR's previous correspondence and telephone conversations, stating that the letter constituted OLR's final request that she provide a written response to the grievance, and asking her to respond within seven days. Attorney Cotten failed to respond in any way to the letter. The letter that was sent by certified mail was returned to OLR marked "unclaimed-return to sender." The letter sent by first-class mail was not returned.

¶ 17. In late March 2001 OLR filed a motion with this court seeking the temporary suspension of Attorney Cotten's license for willful failure to cooperate with the investigation of the grievance. On April 4, 2001, this court entered an order requiring Attorney Cotten to show cause why OLR's motion should not be granted. Attorney Cotten filed no response. On May 21, 2001, this court entered an order temporarily suspending Attorney Cotten's license.

¶ 18. The OLR’s investigative file relating to the grievance was referred to an OLR local district committee. Attorney Cotten initially responded to the committee investigator's phone message, scheduled and kept an appointment, and answered questions. She also agreed to provide medical records from her treating physician and/or psychologist supporting her claim that she was severely depressed during the period complained of in the grievance. She never provided that information.

¶ 19. On July 26, 2001, the committee investigator sent a certified letter to Attorney Cotten at her residence and memorialized the understanding that Attorney Cotten was to have provided various information by June 27, 2001. The committee investigator asked Attorney Cotten to submit the requested information no later than August 3, 2001. Attorney Cotten never replied. On August 12, 2001, the committee investigator's certified letter was returned, marked "unclaimed-return to sender."

¶ 20. The OLR's complaint also alleged that Attorney Cotten engaged in misconduct with respect to a case in which she undertook to represent a second client regarding a property issue relating to the estate of the client's deceased aunt. As noted earlier in this opinion Attorney Cotten's license to practice law was administratively suspended effective June 5, 2000, as a result of her noncompliance with mandatory CLE requirements. On June 13, 2000, Attorney Cotten undertook the representation of the second client. The fee agreement provided that the client would pay a $1150 retainer plus a case opening fee of $50. The client's checks in those amounts cleared the client's checking account.

¶ 21. The second client did not hear from Attorney Cotten after June 2000. At the client's request a Missouri attorney wrote to Attorney Cotten in January 2001 requesting that she either provide the client with a report on the status of the case or refund the retainer. Attorney Cotten never responded to the letter nor did she respond to letters from OLR intake staff sent to her after the client filed a grievance.

¶ 22. The OLR filed a complaint against Attorney Cotten on February 20, 2002. William Eich was appointed as referee. Attorney Cotten did not file an answer. The OLR moved for default judgment, and a hearing was held on April 15, 2002. Counsel for OLR and Attorney Cotten appeared at the hearing and informed the referee they expected to reach a stipulated settlement of the matter within a few weeks. The hearing was adjourned indefinitely. Attorney Cotten and OLR entered into a stipulation, pursuant to SCR 22.12(1), on May 3, 2002. The stipulation stated that it was filed with the request that Referee Eich approve it and file a report and recommendation consistent therewith.

¶ 23. With respect to Attorney Cotten's representation of the first client, the referee concluded that by preparing answers to interrogatories that were so unresponsive that the presiding court stated the answers were "astonishing," Attorney Cotten failed to employ the requisite legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation, in violation of SCR 20:1.1.

¶ 24. The referee also concluded that by discontinuing work on the first client's lawsuit, including failing to respond to discovery requests, which resulted in the court's dismissal of the client's lawsuit, Attorney Cotten failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. The referee further concluded that by failing to inform the first client of the events that had occurred in the case, including failing to tell her that the client had missed deadlines and that the client's case had been dismissed, Attorney Cotten failed to keep her client reasonably informed about the status of a matter, in violation of SCR 20:1.4(a).

¶ 25. The referee also found that by failing to withdraw from representing the first client when Attorney Cotten suffered from depression that purportedly rendered her unable to answer phone calls, open mail or make court appearances, Attorney Cotten violated SCR 20:1.16(a)(2), which requires a lawyer to withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. The referee found that by failing or refusing to return several audiotapes belonging to the first client after the lawsuit had been dismissed, Attorney Cotten violated SCR 20:1.16(d), which requires a lawyer, upon termination of representation, to surrender property to which the client is entitled.

¶ 26. The referee further concluded that by telling the first client the case was proceeding smoothly when, in fact, Attorney Cotten was missing deadlines, failing to respond to the court, and the case had been dismissed, Attorney Cotten engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c). The referee further found that by failing to ever provide a written response to the grievance and by failing to provide additional information requested by the district committee investigator, Attorney Cotten violated SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), and 22.03(6). The referee also concluded that by failing to respond to OLR staffs September 7, 1999, letter requesting a written response to the grievance within 20 days of her receipt of the letter, Attorney Cotten violated former SCR 22.07(2).

¶ 27. The referee also found that by accepting a retainer and filing fee and undertaking to represent the second client while her license was suspended for failing to comply with mandatory CLE requirements, Attorney Cotten violated SCR 31.10(1). The referee also concluded that by failing to respond to the second client or her Missouri attorney, and by failing to return the retainer of $1150 as requested by the Missouri attorney on the client's behalf, and by failing to return the $50 case opening fee, Attorney Cotten violated SCR 20:1.16(d). The referee also concluded that by failing to respond to a grievance investigative request by OLR staff concerning the second client, Attorney Cotten violated SCR 21:15(4), SCR 22.001(9)(b), SCR 22.03(2), and SCR 22.03(6).

¶ 28. The referee recommended that Attorney Cotten's license to practice law in Wisconsin be suspended for one year, that she be ordered to make restitution to the second client in the amount of $1200, and that she be ordered to pay the costs of the proceedings.

¶ 29. We adopt the findings of fact and conclusions of law as set forth in the referee's report and recommendation. Attorney Cotten's misconduct with respect to her handling of the two client matters and her failure to cooperate with the OLR's investigation are serious failings warranting a suspension of her license. A one-year suspension of her license to practice law is appropriate discipline for her professional misconduct.

¶ 30. IT IS ORDERED that the license of Attorney Susan M. Cotten to practice law in Wisconsin remains suspended for a period of one additional year, effective the date of this order.

¶ 31. IT IS FURTHER ORDERED that Attorney Susan M. Cotten comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 32. IT IS FURTHER ORDERED that Attorney Susan M. Cotten refund, within 60 days of the date of this order, $1200 paid by the second client for her representation in a probate matter. If this refund is not made within the specified time, the license of Attorney Susan M. Cotten to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 33. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Susan M. Cotten pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showdng to this court of her inability to pay the costs within that time, the license of Attorney Susan M. Cotten to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 34. IT IS FURTHER ORDERED that restitution to the second client is to be paid prior to paying costs to the Office of Lawyer Regulation.

¶ 35. SHIRLEY S. ABRAHAMSON, C.J., did not participate.

       SCR 22.12(1) provides: "(1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee."

        All subsequent references will be to the current version of the supreme court rules unless otherwise noted.

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

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

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

       SCR 20:1.16(a)(2) provides:
      (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
      (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.

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

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

       SCR 21.15(4) provides:
      (4) Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys.

       SCR 22.001(9)(b) provides:
      (9) "Misconduct" means any of the following:
      (b) Failure to cooperate in the investigation of a grievance.

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

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

       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.

       SCR 31.10(1) provides:
      (1) If a lawyer fails to comply with the attendance requirement of SCR 31.02, fails to comply with the reporting requirement of SCR 31.03(1), or fails to pay the late fee under SCR 31.03(2), the hoard shall serve a notice of noncompliance on the lawyer. This notice shall advise the lawyer that the state bar membership of the lawyer shall be automatically suspended for failing to file evidence of compliance or to pay the late fee within 60 days after service of the notice. The board shall certify the names of all lawyers so suspended under this rule to the clerk of the supreme court and to each judge of a court of record in this state. A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.


source: Caselaw Access Project

license: Public Domain

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

      No. 02-1301-D.

      Decided September 26, 2002.

    2002 WI 113
    (Also reported in 651 N.W.2d 291.)
   The Court entered the following order on this date:

Attorney John E. Sanborn has filed a petition for consensual license revocation under SCR 22.19 indicating that he cannot defend against allegations of misconduct currently being investigated by the Office of Lawyer Regulation and admitting that he has misused certain trust funds belonging to clients including the John Cook Estate. OLR has filed a response in which it concurs with Attorney Sanborn's request. It indicates that it has been investigating 70 allegations of misconduct against him and had previously filed a complaint alleging nine counts, with remaining matters arising out of the original 70 allegations to be investigated further. That complaint has subsequently been withdrawn.

This court temporarily suspended Attorney Sanborn's license on October 23, 2001 upon motion by OLR which alleged that his continued practice of law posed a threat to the interest of the public and the administration of justice. At that time, and also on June 11, 2002, this court denied petitions by Attorney San-born for a consensual license revocation based upon medical incapacity.

Attorney Sanborn's prior disciplinary history consists of: (1) a 1998 private reprimand for failure to act with reasonable diligence and promptness in representing a client, failure to adequately communicate with the client, failure to properly supervise a non-lawyer assistant, failure to cooperate with the investigation of that misconduct, and trust account violations; and, (2) a 2000 private reprimand for failure to cooperate with the investigation of a grievance.

Accordingly,

IT IS ORDERED that the petition for consensual license revocation is granted and the license of Attorney John E. Sanborn to practice law in this state is revoked, effective the date of this order.

IT IS FURTHER ORDERED that Attorney John E. Sanborn make restitution to the John Cook Estate in the amount of $5,000 within 60 days of the date of this order.

IT IS FURTHER ORDERED that Attorney San-born comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been revoked, to the extent he has not already done so as a result of this court's order of October 23, 2001.


text:
    In the Matter of Disciplinary Proceedings Against Virginia Rose Ray, Attorney at Law: Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Virginia Rose Ray, Respondent.
    Supreme Court

      No. 01-1784-D.

      Decided October 2, 2002.

    2002 WI 116
    (Also reported in 651 N.W.2d 727.)
   PER CURIAM.

¶ 1. We review the findings of fact, conclusions of law, and recommendations for sanctions of the referee, John Schweitzer, pursuant to former SCR 21.09(5). Attorney Virginia Rose Ray was found to have engaged in unprofessional conduct in the course of her practice of law and to have failed to cooperate with an investigation of grievances filed against her with the Board, all in violation of the Rules of Professional Conduct. The referee recommended a 60-day suspension of Attorney Ray's license to practice law, payment to a former client of $4000 with interest, and the payment of the costs of these proceedings.

¶ 2. We approve the findings, conclusions, and recommendations and determine that the seriousness of Attorney Ray's misconduct warrants the imposition of these sanctions.

¶ 3. Attorney Ray was admitted to the practice of law in Wisconsin in 1988 and currently practices in Dodgeville, Wisconsin. She has no prior disciplinary history.

¶ 4. On July 2, 2001, the Board issued a complaint against Attorney Ray ordering her to answer within 20 days. She eventually answered and, after the referee was appointed, a hearing was held on November 19, 2001. Prior to that Attorney Ray had stipulated that she had violated counts five and six of the 18-count complaint. The referee issued his report, containing findings of fact, conclusions of law, and a recommended disposition, on March 14, 2002.

¶ 5. The counts of the complaint relate to Attorney Ray's involvement in five cases.

CASE ONE

¶ 6. The first six counts relate to Attorney Ray's representation of a client in a divorce action in 1998. The man paid Attorney Ray $4000 as a flat fee to cover all legal services through final judgment. Attorney Ray put an undetermined number of hours into the case during the first month and shortly thereafter the client discharged her. He then sought the unearned portion of the $4000 and Attorney Ray refused to refund it.

¶ 7. When the client complained to the Board and it investigated the matter, Attorney Ray failed to respond to the Board's first two initial letters of inquiry. Subsequent requests by the Board to her to provide a written response to the complaint also went unheeded. Attorney Ray eventually did grant the Board an interview during which she claimed that it was a nonrefundable fee.

¶ 8. Counts one and two alleged that Attorney Ray had failed to hold the $4000 in a proper client trust fund as required by SCR 20:1.15(a) and had otherwise failed to properly hold the funds in trust as required by SCR 20:1.15(d). These counts had been withdrawn by the Board prior to the hearing and thus are no longer part of this proceeding.

¶ 9. Count three alleged that Attorney Ray failed to perform sufficient services to justify the $4000 fee as required by SCR 20:1.5(a). However, the referee found that the Board had failed to prove this count. He found that there was no evidence regarding the amount of time Attorney Ray spent working on the case and that it was possible that she spent at least 14 hours working on it which would justify the fee if calculated at the rate of $300 per hour, what the referee perceived to be the upper end of the range of reasonable attorney fees for this type of matter.

¶ 10. Count four alleged that Attorney Ray did not take proper steps upon termination of the representation to protect her client's interest as required by SCR 20:1.16(d). The referee also found that the Board failed to provide adequate proof of a violation in this regard.

¶ 11. As previously noted, counts five and six were admitted by Attorney Ray. They alleged that she had failed to respond to the Board as required by former SCR 22.07(2) and had failed to cooperate with the Board's investigation as required by former SCR 21.03(4).

CASE TWO

¶ 12. Counts seven and eight concern Attorney Ray's representation of a father in 1998 to re-establish joint custody of his two children after his former spouse moved them without his permission from Georgia to Wisconsin and then to Pennsylvania, the home of their maternal grandmother. Attorney Ray, her client, her client's new spouse, and a police officer, went to the home of the ex-spouse's sister who lived in Wisconsin. Attorney Ray began yelling at the woman about hiding the children while they had been in this state. She threatened the sister that she would go to jail for interference with the child custody order or for conspiracy to kidnap. She also made similar threats against a friend of the sister who was present during this confrontation and who Attorney Ray thought might have also been involved in this matter. The friend was apparently so intimidated by Attorney Ray that she later "turned herself in" for arrest to the local sheriffs department. On several subsequent occasions, Attorney Ray engaged in similarly abusive telephone conversations with the sister and the grandmother.

¶ 13. Count seven alleged a violation of SCR 20:3.10 which prohibits an attorney from threatening to present criminal charges solely to obtain an advantage in a civil matter. However, the referee found that there had been no such violation because, giving Attorney Ray the benefit of the doubt, she might have been more interested in simply getting the children under the jurisdiction of a Wisconsin court than she was in necessarily obtaining an advantage for her client.

¶ 14. However, the referee did find a violation of count eight based on SCR 40.15 which states that an attorney is to abstain from all displays of an offensive personality, which is part of the attorney's oath, as well as SCR 20:8.4(g) which designates as unprofessional conduct a violation of that oath. The referee was particularly influenced by the testimony of the sister's friend who had no vested interest in the matter. The referee considered her testimony to be more reliable than that of Attorney Ray who had denied that her conduct could be fairly described as reflecting an offensive personality.

CASE THREE

¶ 15. Counts nine and ten involve Attorney Ray's representation of another divorce client. Another attorney was appointed by the court to serve as the guardian ad litem for the minor child of the marriage. The counts centered on a 1998 conference in the chambers of Circuit Court Judge William Dyke. The allegations generally alleged that Attorney Ray interrupted, contradicted, and talked back to Judge Dyke as well as the guardian ad litem and opposing counsel.

¶ 16. Specifically, count nine alleged a violation of SCR 20:3.5(c), which prohibits engaging in conduct intended to disrupt a tribunal. Although Attorney Ray interrupted the other attorneys at the conference by stating, "Oh, brother," and "Oh, what crap," and continued to argue with Judge Dyke after he told her that her conduct was inappropriate, the referee found no violation. Although he found that she had disrupted the tribunal, he could not find evidence that she had intended such a result. Rather he perceived that she was frustrated by the entire situation and, although completely in the wrong, did not violate the rule.

¶ 17. Count ten had alleged that Attorney Ray violated SCR 20:8.4(g) in failing to maintain the respect due to courts of justice and judicial officers, as well as SCR 40.15 which demands this of attorneys as part of their oath. In this instance the referee found a violation based on statements Attorney Ray made in letters to Judge Dyke that her client would not comply with the court's visitation order, by reiterating this at the conference, and by arguing with Judge Dyke that her conduct in general at the conference was appropriate.

CASE FOUR

¶ 18. Counts 11 and 12 stem from Attorney Ray's failure to respond to requests for information from the Board with respect to a grievance filed by a man who claimed that she had attempted to intimidate him regarding a legal matter during a telephone call and had also made false statements regarding the matter in a communication to a public body. Count 11 alleged a violation of SCR 21.03(4) which requires that an attorney cooperate with the Board in the investigation, prosecution, and disposition of grievances and complaints. Count 12 alleged a violation of SCR 22.07(2) requiring that an attorney fully and fairly disclose all facts and circumstances pertaining to alleged misconduct within 20 days of being served a request for a response.

¶ 19. Attorney Ray told the Board investigator that she would not respond to the grievance because she was a sole practitioner, had no secretary, the matter was not worthy of investigation, and that she generally did not have time for the procedure. She then hung up on the investigator. Attorney Ray later failed to respond to a certified letter sent by the Board regarding the matter.

¶ 20. Based on Attorney Ray's admission that she had generally refused to cooperate with the Board, the referee found a violation of both counts.

CASE FIVE

¶ 21. Counts 13 to 18 involved Attorney Ray's representation of Pamela Kuehni in a 1995 divorce. The client paid her a $4000 retainer fee which was to apply to all services through final judgment. After an initial meeting which lasted only one hour the client heard nothing from Attorney Ray for two months. When she went back to see Attorney Ray, the latter swore at her and made derogatory comments about her. This prompted the client to leave and she later called Attorney Ray to terminate the attorney-client relationship and to seek a refund. Attorney Ray admitted to the client that she was entitled to the refund but then told her that she did not have the money to pay her and would not have the funds for more than one year.

¶ 22. Count 13 alleged a violation of SCR 20:1.15(a) which requires that an attorney hold all client funds in a trust account. The referee found that Attorney Ray had failed to deposit the $4000 into her client trust account as required.

¶ 23. Count 14 alleged a violation of SCR 20:1.15(d) which requires that the attorney treat property in which both the attorney and another person claim interest as trust property until there is an accounting and severance of their interests. The referee further found that the failure to place the $4000 into a client trust account violated this rule.

¶ 24. Count 15 alleged a violation of SCR 20:1.5(a) which requires that attorney fees be reasonable. The referee found that because Attorney Ray had performed minimal legal services for the client, the retention of the full $4000 was unreasonable.

¶ 25. Count 16 alleged a violation of SCR 20:1.16(d) which requires that upon termination of representation the attorney is to take steps to protect the client's interest including a refund of any advance payment that has not been earned. Once again the referee found that Attorney Ray's conduct constituted a violation.

¶ 26. Count 17 alleged a violation of SCR 22.07(2) which requires that the attorney fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days of being served by the Board with a request for a response. The referee found that Attorney Ray had failed to respond to the Board investigator's letter and subsequent oral request for a written response to the grievance.

¶ 27. Finally, count 18 alleged a violation of SCR 21.03(4) which requires that attorneys cooperate with the Board in the investigation, prosecution, and disposition of grievances and complaints. The referee also found that Attorney Ray's failure to respond to the Board violated this rule.

RECOMMENDED DISCIPLINE

¶ 28. To summarize, the referee found violations with respect to 12 of the complaint's original 18 counts, two having been dismissed by the Board. Six of the violations concern her failure to cooperate with the Board investigation; two are trust account violations; two are excessive fee violations; and two are offensive personality/failure to maintain respect violations.

¶ 29. The Board asked for a suspension of six months or more and a restitution order for the fee of $4000 in case number one and the Kuehni fee of $4000. Attorney Ray agreed to refund the $4000 to Kuehni, without interest or penalties, but requested dismissal of all other counts although she agreed to a letter of reprimand for her failures to respond to the Board.

¶ 30. The referee has recommended a 60-day suspension, refund of $4000 plus interest to Kuehni, and payment of the costs of this proceeding. The referee indicated that a suspension was necessary to motivate Attorney Ray to renew her familiarity with, and appreciation of, the rules of procedure, civility, cooperation with authority, and trust accounting. The referee further indicated the belief that anything less than the suspension might fail to have the necessary sufficient impact upon Attorney Ray and her behavior in the future. Further, it was his opinion that although some of her actions were quite serious, because she had not previously been the subject of disciplinary proceedings, a 60-day suspension would be adequate.

CONCLUSION

¶ 31. We adopt the findings of fact and conclusions of law of the referee. Attorney Ray's misconduct, as described above, represents a serious failure to comply with the specified rules of professional conduct. Furthermore, the referee's recommendation of sanctions is appropriate discipline for this misconduct.

¶ 32. IT IS ORDERED that the license of Attorney Virginia Rose Ray to practice law in Wisconsin is suspended for a period of 60 days, effective November 6, 2002.

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

¶ 34. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Virginia Rose Ray shall pay to Pamela Kuehni $4000 with interest at 5% from June 8, 1999. In the event that Kuehni has already obtained a civil judgment against Attorney Ray, she shall satisfy the specific amount of that judgment.

¶ 35. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Virginia Rose Ray shall pay $10,015.22 to the Board representing the cost of this proceeding. If these costs, and the refund to the client, are not paid within the time specified, and absent a showing to this court other inability to pay the costs within that time, the license of Attorney Virginia Rose Ray to practice law shall remain suspended indefinitely 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 from the Board of Attorneys Professional Responsibility (Board) to the Office of Lawyer Regulation, and the Supreme Court rules applicable to the lawyer regulation system were also revised. Since the conduct underlying this case arose prior to October 1, 2000, all references will be to the Board and to the Supreme Court rules in effect prior to October 1, 2000.

       Former SCR 21.09(5) provided:
      (5) The referee shall, within 30 days of the conclusion of the hearing, file with the clerk of the supreme court a report stating his or her findings and disposition of the complaint or petition by recommendation of dismissal or imposition of discipline as provided in SCR 21.06 or suspension or conditions upon the continued practice of law for medical incapacity. The board or the attorney may file an appeal of the referee's report with the supreme court within 20 days of the filing of the report. If no appeal is timely filed, the supreme court shall review the referee's report and determine appropriate discipline in cases of misconduct and appropriate action in cases of medical incapacity and may, on its own motion, within 30 days of the expiration of the time for appeal, order the parties to file briefs in the matter or extend the time in which it may order briefs. The supreme court's final disposition of disciplinary and medical incapacity proceedings shall be published in the official publications specified in SCR 80.01. (Emphasis added.)

       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 be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall be 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(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 20:1.5(a) provides:
      (а) A lawyer's fee shall he reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
      (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      (3) the fee customarily charged in the locality for similar legal services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or by the circumstances;
      (б) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
      (8) whether the fee is fixed or contingent.

       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.

       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.

       Former SCR 21.03(4) provided: "(4) Every 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."

       SCR 20:3.10 provides: "Threatening criminal prosecution. A lawyer shall not present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter."

       SCR 40.15 provides, in pertinent part:
      The oath or affirmation to be taken to qualify for admission to the practice of law shall be in substantially the following form:
      I will abstain from all offensive personality ....

       SCR 20:8.4(g) provides: "It is professional misconduct for a lawyer to: (g) violate the attorney's oath."

       SCR 20:3.5(c) provides: "A lawyer shall not: (c) engage in conduct intended to disrupt a tribunal."

       SCR 40:15 provides, in pertinent part:
      The oath or affirmation to be taken to qualify for admission to the practice of law shall be in substantially the following form:
      I will maintain the respect due to courts of justice and judicial officers.


text:
    In the Matter of Disciplinary Proceedings Against Terry J. Ness, Attorney at Law: Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Terry J. Ness, Respondent.
    Supreme Court

      No. 01-2007-D.

      Decided October 2, 2002.

    2002 WI 114
    (Also reported in 651 N.W.2d 724.)
   PER CURIAM.

¶ 1. We review the findings of fact, conclusions of law, and recommendation for discipline of the referee, Timothy L. Vocke, pursuant to former SCR 21.09 (5). Attorney Terry J. Ness was found to have engaged in numerous violations of the Rules of Professional Conduct in the course of his practice of law. The referee has recommended that Attorney Ness's license to practice law be suspended and that he pay the costs of these proceedings.

¶ 2. We approve the findings, conclusions, and recommendations of the referee and determine that the seriousness of Attorney Ness's conduct warrants the imposition of these sanctions.

¶ 3. Attorney Ness was admitted to the practice of law in Wisconsin in 1998. He also took, but did not pass, the Minnesota bar exam. At all times material to this matter Attorney Ness worked for a Minneapolis law firm, Halunen & Ness. He has no prior attorney disciplinary history.

¶ 4. On July 27, 2001, the Board issued a complaint against Attorney Ness ordering him to answer within 20 days. He filed an answer, and subsequently entered into a stipulation with the Board, by which he admitted most of the factual allegations of the complaint, which consisted of six counts. However, he did not stipulate to whether those facts amounted to a violation of the supreme court rules. The referee conducted a disciplinary hearing on March 14, 2002, and subsequently issued his findings, conclusions, and recommendation for discipline on April 12, 2002.

¶ 5. Count one, practicing law . in a jurisdiction where doing so violated the regulation of the legal profession in that jurisdiction, in violation of SCR 20:5.5(a), and counts two through four, knowingly making a false statement of fact or law to a tribunal, in violation of SCR 20:3.3(a)(1), arose out of Attorney Ness's appearances in a Minnesota state court and federal court. He represented to the federal court that he could appear pro hac vice because he was admitted in a Wisconsin federal court, which was not true. However, in reliance on his statement, the federal court admitted him. He told the Minnesota state court that he was admitted in that particular county on a pro hac vice basis and also implied to that court that his partner, who was admitted to practice in Minnesota, was involved in all aspects of the particular case, when neither was true. He also later indicated to the state court that he thought the federal pro hac vice admission, which he fraudulently obtained, would suffice for state court as well.

¶ 6. The referee found that the supreme court rules were violated with respect to these four counts. He found that Attorney Ness had deceived both courts by portraying that he had been admitted in the Wisconsin federal court when that was not true, by claiming that he was admitted in the county on a pro hac vice basis when that was not true, and by claiming that his partner was actually involved in the state case when in fact it was entirely his own. The referee further indicated that Attorney Ness had attempted to deceive the state court by initially claiming that he was newly admitted and that was why his name did not appear on the state computer database, and then later fabricating the claim that he was admitted pro hac vice for purposes of that case.

¶ 7. Count five, failing to indicate jurisdictional limitations while not licensed to practice law in the jurisdiction in which the office is located, in violation of SCR 20:7.5(b), arose because Attorney Ness did not adequately disclose to potential clients that he was not licensed in Minnesota. In addition, he claimed a Wisconsin office which was merely his father's home.

¶ 8. Counts six and seven, making a false or misleading communication about himself and his services, in violation of SCR 20:7.1(a), involved the use of a letterhead that falsely stated Attorney Ness was admitted in federal courts and in Minnesota when that was not true. In addition, these counts involved Attorney Ness's references to his firm as a "national law firm" concentrating on federal False Claims Acts cases, and implying that the firm had achieved significant settlements and verdicts in the successful prosecution of hundreds of such claims, when none of this was true.

¶ 9. With respect to these three counts, the referee found that Attorney Ness had repeatedly used letterheads, websites, fax transmission cover sheets, and similar communications suggesting that there were no jurisdictional limits to his practice and that he was admitted both in Minnesota and in federal courts. In addition, the referee found that Attorney Ness had repeatedly claimed he was an expert in False Claims Acts cases when that was not accurate; indeed, neither Attorney Ness nor his firm had ever litigated such a case.

¶ 10. We find that Attorney Ness violated the relevant supreme court rules with reference to the seven counts with which he was charged and thereby adopt the referee's findings and conclusions concerning these counts.

¶ 11. The Board asked for a nine-month suspension which would require Attorney Ness to apply for reinstatement and convince this court that he had learned something about the ethics and practice of law. He sought a suspension of less than six months so that he could automatically start his practice after the suspension. The referee concluded:

Attorney Ness simply doesn't get it; he is basically dishonest. He doesn't see anything wrong with what he has done. He has done nothing to correct any of the misinformation that he has provided to either the Federal or State Courts in Minnesota. He has attempted to deflect and mislead OLR during its investigation. He was less than honest in the disciplinary proceeding.
His approach throughout the course of the proceeding was to try to deny the obvious and concede a point only when it was impossible not to do so. This Referee and the Supreme Court has to decide whether Attorney Ness engaged in the activities that he did because he was incredibly incompetent or whether he did so because he was dishonest.
Based upon his appearance before me, I have concluded that the latter is true.

The referee recommended a nine-month suspension along with costs of $5952.40.

¶ 12. We agree with the referee's comments and adopt the referee's recommendation for discipline which is appropriate for the professional misconduct demonstrated in this case. Attorney Ness's misconduct was both repeated and serious, warranting the substantial sanction involved here.

¶ 13. Accordingly, it is appropriate that the license of Attorney Ness to practice law in this state be suspended for a period of nine months and that he pay the costs of this proceeding in the amount of $5952.40.

¶ 14. IT IS ORDERED that the license of Attorney Terry J. Ness to practice law in Wisconsin be suspended for a period of nine months, effective November 6, 2002.

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

¶ 16. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Terry J. Ness shall pay $5952.40 to the Board, representing the costs of this proceeding. If these costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Terry J. Ness to practice law shall remain suspended indefinitely 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 from the Board of Attorneys Professional Responsibility (Board) to the Office of Lawyer Regulation, and the Supreme Court rules applicable to the lawyer regulation system were also revised. Since the conduct underlying this case arose prior to October 1, 2000, all references will be to the Board and to the Supreme Court rules in effect prior to October 1, 2000.

       Former SCR 21.09(5) provided:
      (5) The referee shall, within 30 days of the conclusion of the hearing, file with the clerk of the supreme court a report stating his or her findings and disposition of the complaint or petition by recommendation of dismissal or imposition of discipline as provided in SCR 21.06 or suspension or conditions upon the continued practice of law for medical incapacity. The board or the attorney may file an appeal of the referee's report with the supreme court within 20 days of the filing of the report. If no appeal is timely filed, the supreme court shall review the referee's report and determine appropriate discipline in cases of misconduct and appropriate action in cases of medical incapacity and may, on its own motion, within 30 days of the expiration of the time for appeal, order the parties to file briefs in the matter or extend the time in which it may order briefs. The supreme court's final disposition of disciplinary and medical incapacity proceedings shall be published in the official publications specified in SCR 80.01. (Emphasis added.)

       SCR 20:5.5(a) provides: "Unauthorized practice of law. A lawyer shall not:, (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction."

       SCR 20:3.3(a)(l) provides: "Candor toward the tribunal, (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal."

       SCR 20:7.5(b) provides: "(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located."

       SCR 20:7.1(a) provides:
      (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:
      (1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
      (2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;
      (3) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated; or
      (4) contains any paid testimonial about, or paid endorsement of, the lawyer without identifying the fact that payment has been made or, if the testimonial or endorsement is not made by an actual client, without identifying that fact.


text:
    In the Matter of Disciplinary Proceedings Against Jonathan C. Lewis, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jonathan C. Lewis, Respondent.
    Supreme Court

      No. 02-0870-D.

      Decided October 2, 2002.

    2002 WI 115
    (Also reported in 651 N.W.2d 734.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Jonathan C. Lewis and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12 setting forth findings of fact and conclusions of law regarding Attorney Lewis' professional misconduct in connection with his representation of two parties with conflicting interests. Attorney Lewis and the OLR stipulated to a 60-day suspension of Attorney Lewis' license to practice law in Wisconsin.

¶ 2. We approve the stipulation and adopt the stipulated facts and conclusions of law. We agree that Attorney Lewis' misconduct warrants the suspension of his license to practice law. We accept the parties' stipulation that 60 days is appropriate discipline for this offense.

¶ 3. Attorney Lewis has no previous disciplinary history. He is a Minnesota lawyer. He was admitted to practice in Wisconsin in December 1996. His license to practice law in Wisconsin has been under administrative suspension since June 8, 1999, for non-compliance with CLE requirements. The parties agree that the Wisconsin disciplinary rules apply in this matter.

¶ 4. The current disciplinary proceeding stems from Attorney Lewis' representation of two parties to a complicated business transaction where the parties had conflicting interests.

¶ 5. The facts regarding the underlying business relationships and transactions, as derived from the parties' stipulation, are a necessary backdrop to assessing Attorney Lewis' actions. In 1993 John Strum, a Wisconsin resident, incorporated a company called Ka-tusha for the purpose of conducting trade deals with a Russian company called SKIF, which was owned by a Russian businessman named Vladimir Zhirkov. Strum and Zhirkov were acquaintances.

¶ 6. In 1995 James Stephenson and Neale Caf-lisch entered into a contract to purchase all the shares of Katusha (the "Sale Agreement"). The Katusha shareholders, who consisted of Strum and nine other individuals, received promissory notes totaling $200,000, which were to be paid at two future dates.

¶ 7. For purposes of this disciplinary opinion it is sufficient to state that the Katusha sale basically meant that Stephenson and Caflisch acquired the rights to the business relationship with Zhirkov and SKIF. The Sale Agreement provided that Strum would incorporate a new business entity (Katusha II), which would assume all the pre-existing contracts with SKIF. However, Ka-tusha II was never legally incorporated because Strum never paid the filing fee. Strum did open bank accounts for Katusha II and otherwise proceeded as though the new company was a legal entity. He also continued to consult with the new owners of Katusha, but their relationship quickly deteriorated.

¶ 8. It appears that the difficulties giving rise to Attorney Lewis' involvement in this matter began when a series of sugar deals went wrong, badly straining the relationship between the new owners of Katusha and Zhirkov. The new owners believed Strum was actively undermining their relationship with Zhirkov. In addition, Katusha received demand letters for debts that allegedly should have been assumed by Katusha II.

¶ 9. Ultimately, the new owners of Katusha refused to pay the promissory notes held by Katusha's original shareholders. They stated that they were rescinding their purchase of Katusha, alleging that the former shareholders had breached the Sale Agreement. About the same time, SKIF/Zhirkov transferred $900,000 to an account where it was to be held in trust pending a sugar shipment by Katusha to SKIF. A complex series of transactions ensued. Again, for purposes of this opinion it is sufficient to state that the sugar was never delivered to SKIF and the $900,000 was deposited into an account located in the British Virgin Islands, allegedly owned by a corporation with ties to Katusha's new owners.

¶ 10. At this point, Strum approached Attorney Lewis and asked Attorney Lewis to represent him in an action against Stephenson and Caflisch regarding their rescission of the Sale Agreement and their failure to pay the promissory notes.

¶ 11. Shortly thereafter, at Strum's suggestion, Attorney Lewis also agreed to represent Zhirkov and SKIF in an action to try to recover the $900,000. Herein lies the crux of the disciplinary proceeding now before this court.

¶ 12. At no time did Attorney Lewis obtain written consent from either Zhirkov or Strum regarding the potential or actual conflict relating to his representation of both parties. In his capacity as Zhirkov's and SKIF's attorney, Attorney Lewis pursued settlement negotiations for Zhirkov. However, it is undisputed that one of the provisions in a proposed settlement agreement drafted by Attorney Lewis would have substantially benefited Attorney Lewis' other client, Strum. Attorney Lewis also drafted a complaint on behalf of Zhirkov that named Katusha, Stephenson, Caflisch, and their associates, as defendants. According to the OLR complaint filed in this matter, Attorney Lewis led Zhirkov to believe he had filed the complaint when, in fact, it was not filed.

¶ 13. Eventually, the nine other shareholders of Katusha filed a complaint against Stephenson and Caflisch. Stephenson and Caflisch responded with several counterclaims, including a claim that Strum had conspired to damage them by interfering in the contract between Katusha and SKIF.

¶ 14. In his capacity as Strum's attorney, Attorney Lewis filed an Answer and Counterclaim alleging that Stephenson and Caflisch owed Strum money for the unpaid promissory notes. Lewis also represented Strum at his deposition, where opposing counsel twice commented that a conflict of interest existed with respect to Lewis' representation of both Zhirkov/SKIF and Strum.

¶ 15. As the litigation involving Strum proceeded, Attorney Lewis continued to represent SKIF and Zhirkov in settlement negotiations, despite the fact that it was clear that Strum would be a potential defendant in any litigation filed by Zhirkov/SKIF against Katusha and Katusha II.

¶ 16. In addition, both matters involved Stephenson and Caflisch, such that obtaining damages on behalf of one client would mean less money available for the other client to collect.

¶ 17. On March 25, 2002, the OLR filed a complaint against Attorney Lewis, alleging five counts of attorney misconduct relating to Attorney Lewis' representation of the two parties. Specifically, OLR alleged that:

(1) by simultaneously representing both Strum and Zhirkov in related representations where his representation of one client was materially limited by his representation of the other client, [Lewis] violated SCR 20:1.7(b);
(2) by failing to file a lawsuit and pursue litigation on behalf of SKIF, [Lewis] failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3;
(3) by failing to keep Zhirkov or other SKIF representatives reasonably informed about the status of the representation, and by failing to promptly comply with the client's reasonable requests for information, [Lewis] violated SCR 20:1.4(a);
(4) by leading Zhirkov to believe that he had filed an action on SKIF's behalf when he had never filed the complaint that Zhirkov signed, [Lewis] engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of SCR 20:8.4(c); and
(5) by failing to provide a written response to this grievance ... [Lewis] acted contrary to [former] SCR 22.07(2) and [former] SCR 21.03(4); and, by failing to respond to... [OLR's subsequent] request for additional information, and by failing to provide billing statements ... [Lewis] has violated SCR 22.03(6)...

¶ 18. In April 2002 the OLR and Attorney Lewis executed a stipulation pursuant to SCR 22.12. In addition to stipulating to the facts as set forth above, the parties stipulated to discipline in the form of a 60-day suspension of Attorney Lewis' license to practice law in Wisconsin. The OLR is not seeking imposition of costs in this matter.

¶ 19. We have reviewed this matter and now adopt the findings of fact and conclusions of law set forth in the parties' stipulation. We agree that Attorney Lewis' conduct, as set forth in the stipulation and in the OLR complaint, reflects a serious breach of professional conduct and warrants suspension of Attorney Lewis' license to practice law. We accept the parties' conclusion that a 60-day suspension of his license is appropriate discipline for his professional misconduct.

¶ 20. IT IS ORDERED that the license of Jonathan C. Lewis to practice law in Wisconsin is suspended for a period of 60 days, effective the date of this order. The OLR indicates it is not seeking imposition of costs in this matter.

¶ 21. IT IS FURTHER ORDERED that Jonathan C. Lewis 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 22.12 provides: Stipulation.
      (1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
      (2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.
      (3) If the supreme court rejects the stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.
      (4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.
      All subsequent references will be to the current version of the supreme court rules unless otherwise noted.

       SCR 20:1.7(b) provides:
      (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
      (1) the lawyer reasonably believes the representation will not be adversely affected; and
      (2) the client consents in writing after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

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

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

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

       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.
      Former SCR 21.03(4) provided: "(4) Every 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."

       SCR 22.03(6) provides: "In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."
      Initially, Attorney Lewis failed to file a written response to SKIF's grievance. He also failed to respond to OLR's second request for a response to the grievance. After a third request from OLR, Attorney Lewis did provide a written response but failed to respond to a request for additional information in a timely manner. He also failed to provide OLR with requested billing information. These actions gave rise to the fifth count against Lewis.


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

      No. 01-3055-D.

      Decided October 17, 2002.

    2002 WI 117
    (Also reported in 652 N.W.2d 107.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney James W. Bannen and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12. That stipulation was accepted by the referee appointed in this matter who then issued a report setting forth the findings of fact and conclusions of law concerning Attorney Bannen's admitted 13 separate counts of misconduct. The referee also adopted the stipulated recommendation that Attorney Bannen's license to practice law in this state should be suspended for a period of three years and that he pay the costs of these proceedings.

¶ 2. We approve the stipulation, accept the referee's report and recommendation, and determine that the seriousness of Attorney Bannen's misconduct warrants the suspension of his license to practice law for three years. We also agree that he should pay the costs of these proceedings totaling $3875.63.

¶ 3. Attorney James W. Bannen was admitted to practice law in Wisconsin in 1974 and has never before been the subject of a disciplinary proceeding. He practices in La Crosse.

¶ 4. On November 15, 2001, the OLR filed a complaint alleging 13 separate counts of misconduct against Attorney Bannen. Bannen filed an answer to that complaint on December 6, 2001, and pursuant to SCR 22.13(3), Attorney Catherine Rottier was appointed to serve as referee in this matter. Prior to a scheduled hearing counsel for the OLR and Attorney Bannen informed the referee that they had reached a stipulation by which Attorney Bannen conceded that there was sufficient evidence to sustain the OLR's burden of proof with respect to all 13 allegations of misconduct in the complaint:

• Bannen engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of SCR 20:8.4(c) (two counts).
• Bannen assisted a client in conduct that Bannen knew was criminal or fraudulent in violation of SCR 20:1.2.
• Bannen failed to fully and fairly disclose to the Board of Professional Responsibility (BAPR) all the facts and circumstances pertaining to his alleged misconduct in violation of former SCR 22.07(2) (two counts).
• Bannen failed to fully and fairly disclose to BAPR all facts and circumstances pertaining to his alleged misconduct and made a misrepresentation in a disclosure to BAPR in violation of former SCR 22.07(2) (two counts).
• Bannen failed to hold in trust property of clients or third persons in his possession in connection with the representation in violation of SCR 20:1.15(a).
• Bannen failed to make reasonable efforts to ensure that his firm had in effect measures giving reasonable assurance that the conduct of a non-lawyer employee was compatible with the professional obligations of a lawyer in violation of SCR 20:5.3(a).
• Bannen failed to keep complete records of trust account funds and other trust property in violation of SCR 20:1.15(e).
• Bannen represented a client while his representation was materially limited by Bannen's own interests in violation of SCR 20:1.7(b).
• Bannen failed to keep a client reasonably informed about the status of a matter and explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation in violation of SCR 20:1.4 (two • counts).

¶ 5. Bannen concedes that the OLR has sufficient evidence to sustain its burden of proof with respect to all of the allegations contained in all 13 claims identified in the OLR complaint.

¶ 6. Pursuant to the parties' stipulation the referee took into account certain mitigating factors in recommending the appropriate discipline to be imposed: Bannen has never previously been the subject of a disciplinary proceeding during his 27 years of practice, there was no evidence that Bannen had benefited personally from the misconduct, and Bannen or his firm has made full restitution to the clients for the losses caused by the misconduct.

¶ 7. In addition, Bannen expressed remorse for the mistakes he made; while Bannen agreed that he clearly exceeded his authority with respect to some of the misconduct, the referee noted that he did not do so with any venal motive or for personal gain.

¶ 8. Moreover, it was stipulated that Bannen had cooperated with authorities in an investigation which resulted in thwarting a fraudulent scheme that would have put a client's funds at risk.

¶ 9. The referee also recognized that many of the allegations against Bannen involved activities that had occurred several years before the BAPR investigation; consequently, Bannen's responses to the investigator's inquiries were compiled from memory and from records which were inadequate and, as Bannen later discovered, fraudulent.

¶ 10. The referee also noted that it was stipulated that Bannen was unaware of his employee's criminal acts which had resulted in a loss of client funds.

¶ 11. Other mitigating facts were taken into account by the referee who then adopted the stipulated recommendation that for Bannen's admitted misconduct, his license to practice law should be suspended for a period of three years and that he pay the costs of these proceedings.

¶ 12. We adopt the findings of fact and conclusions of law set forth in the referee's report based on the parties' stipulation. Bannen's admitted acts are serious failings warranting a suspension of his license even if he did not personally benefit from the misconduct. We conclude a three-year suspension of Bannen's license to practice law is an appropriate discipline for this misconduct. and we direct that he pay the costs of these proceedings.

¶ 13. IT IS ORDERED that the license of James W. Bannen to practice law in Wisconsin is suspended for a period of three years, effective November 21, 2002.

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

¶ 15. IT IS FURTHER ORDERED that within 60 days of the date of this order James W. Bannen pay to the Office of Lawyer Regulation the costs of this proceeding in the amount of $3875.63. If the costs are not paid within 60 days, and absent a showing to this court of his inability to pay the costs within that time, the license of James W. Bannen to practice law in Wisconsin shall remain suspended until further order of this court.

       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. Some of the conduct underlying this case arose prior to October 1, 2000. However, the complainant in this case will be referred to as the OLR. All references to supreme court rules will be to the current version of the supreme court rules unless otherwise noted.


text:
    State of Wisconsin, Plaintiff-Respondent, v. Luther Williams, III, Defendant-Appellant.
    Supreme Court

      No. 00-3065-CR.

      Decided October 24, 2002.

    2002 WI 118 (Also reported in 652 N.W.2d 391.)
   PER CURIAM.

¶ 1. The State of Wisconsin moves the court to reconsider its opinion in State v. Luther Williams, III, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919. Essentially, the State seeks clarification of the standard to be employed when reviewing a claim that inadmissible hearsay violated the defendant's right of confrontation.

¶ 2. To clarify the Williams opinion, we now modify ¶ 33 to read as follows:

¶ 33 The threshold question in examining whether a defendant's right to confrontation is violated by the admission of hearsay evidence is whether that evidence is admissible under the rules of evidence. State v. Bauer, 109 Wis. 2d 204, 210, 325 N.W.2d 857 (1982). If the evidence does not fit within a recognized hearsay exception, it must be excluded. Id. Only after it is established that the evidence fits within a recognized hearsay exception or was admitted erroneously does it become necessary to consider confrontation. Bruton v. United States, 391 U.S. 123, 137 (1968); Bauer, 109 Wis. 2d at 210. Here, we determine that the lab report does not fit within the business records hearsay exception as the State asserts, but the admission was harmless error. Thus, we do not reach this confrontation issue because a determination of a Confrontation Clause violation does not result in automatic reversal, but rather is subject to harmless error analysis. Delaware v. Van Arsdale, 475 U.S. 673, 684 (1986). Even if Williams' right to confrontation was violated, the violation was harmless error.

¶ 3. The motion for reconsideration is denied without costs.


text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Patrick A. Saunders, Defendant-Appellant.
    Supreme Court

      No. 01-0271.

      Decided October 24, 2002.

    2002 WI 119
    (Also reported in 652 N.W.2d 391.)
   PER CURIAM.

¶ 1. The motion for reconsideration is denied without costs.

¶ 2. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). Patrick Saunders filed a motion for reconsideration, asserting two grounds:

(1) The court's decision overlooks and is in conflict with controlling legal authority, namely Wis. Stat. §§ 889.07 and 889.08; and
(2) When the court concludes that little material difference exists between a certified and uncertified copy of a prior judgment of conviction, it overlooks important policy considerations evident in other statutes that explicitly require certified copies of a prior judgment.

¶ 3. The State opposes the motion for reconsideration on two grounds, one procedural and the other substantive:

(1) The State's procedural argument is that a motion for reconsideration should not be employed to present a new argument; and
(2) The State's substantive argument on the merits is that the statutes cited do not require the use of a certified copy of a conviction and do not prohibit the use of an uncertified copy.

¶ 4. The State's procedural argument is unconvincing. The motion in the present case alerts the court to a possible error or omission in its decision. The motion thus serves one of the primary purposes of a motion for reconsideration. Most motions for reconsideration are denied because they re-argue issues already argued and considered. The motion in the present case does not fall into this category as neither the parties nor the majority and dissenting opinions referred to these statutes.

¶ 5. I take no position on the substantive merits of the controversy. I write because I believe that in the interest of judicial economy, the court should decide, with or without further briefing, the legal issue Saunders raises in his motion and should forestall further litigation on the issue he presents.

¶ 6. For the reasons set forth, I concur in the court's decision to deny the motion for reconsideration, but I conclude that the court ought to issue an appropriate corrective or explanatory memorandum to its opinion on the issues raised.

       Wisconsin Stat. § 889.07 provides as follows:
      The original records, papers and files in or concerning any action or proceeding of any nature or description in any court of the state, being produced by the legal custodian thereof, shall be receivable in evidence whenever relevant; and a certified copy thereof shall be received with like effect as the original.

       Wisconsin Stat. § 889.08 provides in part as follows:
      (1) Whenever a certified copy is allowed by law to be evidence, the copy shall be certified by the legal custodian of the original to have been compared by the custodian with the original, and to be a true copy thereof or a correct transcript therefrom, or to be a photograph of the original. The certificate must he under the custodian's official seal or under the seal of the court, public body or board, whose custodian the custodian is, when the custodian, court, body or board is required to have or keep such seal.
      * s¡; * * *

      (5) When a certified copy of any record, paper or instrument of any kind is made receivable in evidence such copy shall have the same effect as evidence as the original.
      Saunders argues that Wis. Stat. § 889.07 is not limited to evidence offered at trial and that compliance with this statute is required in the present case. Saunders cites Lingott v. Bihlmire, 38 Wis. 2d 114, 127-28, 156 N.W.2d 439 (1968).

        See Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin § 22.4 (2d ed. 1995 & Supp. 2001).

       The Internal Operating Procedures of the Supreme Court, part II. J., provide as follows:
      Reconsideration, in the sense of a rehearing of the case, is seldom granted. A change of decision on reconsideration will ensue only when the court has overlooked controlling legal precedent or important policy considerations or has overlooked or misconstrued a controlling or significant fact appearing in the record. A motion for reconsideration may result in the court's issuing a corrective or explanatory memorandum to its opinion without changing the original mandate.