author: PER CURIAM.

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

      No. 2000AP1426-D.

      Decided July 6, 2005.

    2005 WI 101
    (Also reported in 700 N.W.2d 1.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that John Miller Carroll's license to practice law in Wisconsin be reinstated upon certain conditions. We adopt the referee's findings of fact and conclusions of law and agree with his recommendation that John Miller Carroll's license to practice law be reinstated. We also agree with the referee that it is appropriate to impose certain conditions upon the reinstatement. In addition, we find it appropriate that Mr. Carroll pay the costs of the reinstatement proceeding, which are $3695.31 as of June 17, 2005.

¶ 2. Mr. Carroll was admitted to practice law in Wisconsin in 1987. In 1992 he received a private reprimand for failing to hold funds in trust in which both he and his former law firm claimed an interest. In 1997 he received a 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. In 1999 he received a public reprimand for neglect of a matter, failing to communicate with a client, and failing to return a retainer.

¶ 3. Mr. Carroll's license to practice law was suspended for one year commencing on January 10, 2002. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, 248 Wis. 2d 662, 636 N.W.2d 718. In that disciplinary proceeding Mr. Carroll was found to have committed eight counts of professional misconduct, four of which related to trust account and associated retainer and legal fee matters. The other four counts of misconduct involved failure to diligently pursue a client's claim, failure to keep a client reasonably informed about the status of a matter, failure to disclose to and cooperate with the Board of Attorneys Professional Responsibility (the predecessor to the Office of Lawyer Regulation (OLR)), and engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation. While suspended Mr. Carroll consented to the issuance of a public reprimand for pre-suspension conduct involving loaning funds to a personal injury client in conjunction with a pending litigation.

¶ 4. Mr. Carroll petitioned for reinstatement of his license to practice law in October 2002. Following a hearing in April 2003, the referee issued a report recommending that the petition for reinstatement be denied. Mr. Carroll filed an appeal. After full briefing and oral argument, this court denied the petition for reinstatement. See In re Disciplinary Proceedings Against Carroll, 2004 WI 19, 269 Wis. 2d 172, 675 N.W.2d 792. The opinion stated that Mr. Carroll could file a new petition for reinstatement of his license six months after the date of the court's decision.

¶ 5. Mr. Carroll filed his second petition for reinstatement in September 2004. The referee, Judith Sperling-Newton, held a hearing in January 2005, and issued her report on May 27, 2005. In her report the referee noted that Mr. Carroll called seven witnesses at the hearing and also testified on his own behalf. The referee said that for the most part all witnesses "had an absolute trust in petitioner's honesty and integrity, to the point of asking him to handle their personal real estate business." The referee said there was no evidence that Mr. Carroll had engaged in the practice of law while he was suspended or that he in any other way violated the provisions of SCR 22.26 since the date of his suspension.

¶ 6. The referee noted that SCR 22.31(1) provides the standard to be met for reinstatement. Specifically, the petitioner must show by clear, satisfactory and convincing evidence that he or she has the moral character to practice law, that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that he or she has complied with SCR 22.26 and the terms of the suspension. In addition to these requirements, SCR 22.29(4) states related requirements that a petition for reinstatement must show. All of these additional requirements are effectively incorporated into SCR 22.31(1). The referee concluded that Mr. Carroll met all of the criteria for reinstatement and met his burden of demonstrating that his license to practice law in Wisconsin should be reinstated.

¶ 7. The referee recommended that, for two years following the reinstatement of his license, Mr. Carroll be subject to the following conditions: (1) that the court impose a reporting and monitoring requirement relating to Mr. Carroll's trust account; (2) that Mr. Carroll be required to provide the OLR with quarterly reports showing that his trust account management and record keeping comply with the Rules of Professional Conduct; (3) that Mr. Carroll be required to provide promptly to the OLR any and all additional trust account or client records that the OLR may request; and (4) that the OLR have the authority in its supervisory capacity to ensure that Attorney Carroll is at all times in compliance with the provisions of an office management plan which he furnished to the OLR on February 14, 2005. The OLR informed the court that after receiving and reviewing the referee's report and recommendation, the OLR would not be filing an appeal.

¶ 8. After a review of the record we conclude that John Miller Carroll has established by clear, satisfactory and convincing evidence that he has satisfied all the criteria for reinstatement. Accordingly, we adopt the referee's findings of fact and conclusions of law and we agree with the referee's recommendation that Mr. Carroll's license to practice law in Wisconsin be reinstated.

¶ 9. IT IS ORDERED that the petition for reinstatement of the license of John Miller Carroll to practice law in Wisconsin is granted, effective the date of this order.

¶ 10. IT IS FURTHER ORDERED that, as a condition of reinstatement, for a period of two years John Miller Carroll shall submit to an audit of his client trust account, at his own expense, at least quarterly, as required by the OLR.

¶ 11. IT IS FURTHER ORDERED that, as a condition of reinstatement, for a period of two years John Miller Carroll shall be required to provide the OLR with quarterly reports showing that his trust account management and record keeping comply with the Rules of Professional Conduct.

¶ 12. IT IS FURTHER ORDERED that, as a condition of reinstatement, for a period of two years John Miller Carroll shall be required to provide promptly to the OLR any and all additional trust account or client records that the OLR may request.

¶ 13. IT IS FURTHER ORDERED that, as a condition of reinstatement, for a period of two years the OLR shall have the authority in its supervisory capacity to ensure that John Miller Carroll is at all times in compliance with the provisions of the office management plan which he furnished to the OLR on February 14, 2005.

¶ 14. IT IS FURTHER ORDERED that within 60 days of the date of this order John Miller Carroll shall 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 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 be suspended until further order of the court.

       SCR 22.26 provides: Activities following suspension or revocation.
      (1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do all of the following:
      (a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation.
      (b) Advise the clients to seek legal advice of their choice elsewhere.
      (c) Promptly provide written notification to the court or administrative agency and the attorney for each party in a matter pending before a court or administrative agency of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation. The notice shall identify the successor attorney of the attorney's client or, if there is none at the time notice is given, shall state the client's place of residence.
      (d) Within the first 15 days after the effective date of suspension or revocation, make all arrangements for the temporary or permanent closing or winding up of the attorney's practice. The attorney may assist in having others take over clients' work in progress.
      (e) Within 25 days after the effective date of suspension or revocation, file with the director an affidavit showing all of the following:
      (i) Pull compliance with the provisions of the suspension or revocation order and with the rules and procedures regarding the closing of the attorney's practice.
      (ii) A list of all jurisdictions, including state, federal and administrative bodies, before which the attorney is admitted to practice.

        (iii) A list of clients in all pending matters and a list of all matters pending before any court or administrative agency, together with the case number of each matter.
      (f) Maintain records of the various steps taken under this rule in order that, in any subsequent proceeding instituted by or against the attorney, proof of compliance with the rule and with the suspension or revocation order is available.
      (2) An attorney whose license to practice law is suspended or revoked or who is suspended from the practice of law may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel, except that the attorney may engage in law related work in this state for a commercial employer itself not engaged in the practice of law.
      (3) Proof of compliance with this rule is a condition precedent to reinstatement of the attorney's license to practice law.

       SCR 22.31(1) provides: Reinstatement hearing.
      (1) The petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence all of the following:
      (a) That he or she has the moral character to practice law in Wisconsin.
      (b) That his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest.
      (c) That his or her representations in the petition, including the representations required by SCR 22.29(4)(a) to Cm) and 22.29(5), are substantiated.
      (d) That he or she has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26.

       SCR 22.29(4) provides: Petition for reinstatement.
      (4) The petition for reinstatement shall show all of the following:
      (a) The petitioner desires to have the petitioner's license reinstated.
      (b) The petitioner has not practiced law during the period of suspension or revocation.
      (c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated.
      (d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities.
      (e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach.
      (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards.
      (g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.
      (h) The petitioner has fully complied with the requirements set forth in SCR 22.26.
      (j) The petitioner's proposed use of the license if reinstated.
      (k) A full description of all of the petitioner's business activities during the period of suspension or revocation.

        (m) The petitioner has made restitution to or settled all claims of persons injured or harmed by petitioner's misconduct or, if not, the petitioner's explanation of the failure or inability to do so.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Michelle L. Tully, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Michelle L. Tully, Respondent.
    Supreme Court

      No. 2004AP1915-D.

      Decided July 6, 2005.

    2005 WI 100
    (Also reported in 699 N.W.2d 882.)
   PER CURIAM.

¶ 1. We review the report of the referee, Linda S. Balisle, in which she concludes that Attorney Michelle L. Tully engaged in multiple counts of misconduct. The referee recommends that Attorney Tully's license to practice law in Wisconsin be suspended for two years, that she be ordered to pay restitution to one client, that she be required to pay the costs of the proceeding, and that conditions be placed upon her reinstatement. We adopt the referee's findings of fact and conclusions of law and also agree with the level of discipline recommended.

¶ 2. Attorney Tully was licensed to practice law in Wisconsin in 1993. The most recent address she has on file with the State Bar of Wisconsin is in Lake Villa, Illinois. Other known addresses are Lake Geneva, Wisconsin and Antioch, Illinois. On June 3, 2002, Attorney Tully's Wisconsin license was suspended for noncompliance with mandatory continuing legal education (CLE) reporting requirements. Her license was reinstated on December 20, 2002. Attorney Tully's Wisconsin license was again temporarily suspended on May 15, 2003, pursuant to SCR 22:03(4), for her failure to cooperate with two OLR grievance investigations. Her license remains suspended.

¶ 3. In September 2004, the Office of Lawyer Regulation (OLR) filed an amended complaint alleging that Attorney Tully had engaged in 29 counts of misconduct. The record indicates that Attorney Tully evaded service of the order to answer and amended complaint. Many attempts were made to serve her with authenticated copies of the pertinent documents, as evidenced by an affidavit from a special process server. After making a number of attempts to serve Attorney Tully personally, the process server left the documents with Attorney Tully's father in Lake Villa, Illinois, at the most recent home address Attorney Tully had furnished to the State Bar of Wisconsin. In addition, the OLR sent an authenticated copy of the documents, by certified mail, to Attorney Tully at that address.

¶ 4. The OLR's amended complaint alleged four counts of misconduct with respect to her representation of Diane C., who retained Attorney Tully to handle a post-divorce collection action against Diane's ex-husband. Attorney Tully filed an order to show cause, and a hearing was scheduled for December 6, 2001. Diane's ex-husband did not appear at the hearing, and the court commissioner adjourned the matter to January 17, 2002, due to Attorney Tully's failure to file an affidavit in support of the order to show cause and her failure to have Diane's ex-husband personally served. Attorney Tully did not correct these deficiencies by the time of the January 17, 2002 hearing. On the morning of the hearing, Attorney Tully's secretary telephoned Diane C. notifying her that Attorney Tully had cancelled the hearing due to a scheduling conflict. Diane C. lost a day's wages due to Attorney Tully's cancellation of the hearing. Diane C. and her boyfriend repeatedly tried to contact Attorney Tully to inquire about the status of their case, but Attorney Tully failed to respond to their inquiries.

¶ 5. On April 30, 2002, Diane C. forwarded correspondence to Attorney Tully, by certified mail, terminating Attorney Tully's services and requesting a return of Diane C.'s file and her $250 retainer. Attorney Tully failed to respond and did not return Diane C.'s file until December 18, 2002, more than seven months after Diane C.'s initial request. In an envelope postmarked October 27, 2003, Diane C. received a $250 check from Attorney Tully that was dated August 4, 2003.

¶ 6. On July 16, 2002, the OLR forwarded correspondence to Attorney Tully requesting a response to Diane C.'s grievance. Attorney Tully submitted a one-paragraph response. The OLR asked for a supplemental response but received none.

¶ 7. On December 10, 2002, this court issued an order pursuant to SCR 22:03(4) requiring Attorney Tully to show cause why her Wisconsin law license should not be suspended for her failure to cooperate in the OLR's investigation of the Diane C. matter. Attorney Tully submitted a response but it did not fully address all issues raised by the OLR. The OLR sent Attorney Tully a letter requesting an additional supplemental response. Attorney Tully failed to respond to that letter. She did subsequently submit a brief response to another letter from the OLR. Diane C.'s grievance was forwarded to an OLR district committee for investigation. Attorney Tully thereafter failed to respond to several faxes, letters and telephone calls from the district committee investigator.

¶ 8. The OLR's amended complaint alleged that by failing to file an affidavit in support of Diane C.'s motion to show cause and by failing to personally serve the adverse party by the adjourned hearing date, Attorney Tully violated SCR 20:1.3. The amended complaint also alleged that by failing to timely notify Diane C. that the adjourned hearing was cancelled, and by failing to respond to Diane C.'s numerous telephonic and written inquiries, Attorney Tully violated SCR 20:1.4(a). The amended complaint alleged that by failing to timely return Diane C.'s file and refund the unearned fee, Attorney Tully violated SCR 20:1.16(d). The amended complaint also alleged that by failing to file a supplemental written response to Diane C.'s grievance until after this court issued an order to show cause why her license should not be suspended for her failure to cooperate and by failing to respond to several requests from the district committee, Attorney Tully violated SCR 22:03(2) and SCR 20:8.4(f).

¶ 9. The OLR's amended complaint also alleged two counts of misconduct arising out of Attorney Tully's handling of a divorce action for James K. during the time her Wisconsin law license was suspended for noncompliance with CLE mandatory reporting requirements. Attorney Tully admitted in the petition for reinstatement she filed with the Board of Bar Examiners (BBE) that she filed the divorce while she was suspended. The OLR's complaint alleged that by filing the divorce action while her license was suspended due to her failure to comply with mandatory CLE reporting requirements, Attorney Tully violated SCR 31.10(1) and SCR 20:8.4(f). The OLR's amended complaint also alleged that by failing to file a written response to the matter until this court issued an order to show cause why her license should not be suspended for her failure to cooperate, Attorney Tully violated SCR 22.03(6) and SCR 20.8.4(f).

¶ 10. The OLR's amended complaint alleged six counts of misconduct arising out of Attorney Tully's representation of Carolyn I. in a real estate transaction while Attorney Tully's license was suspended for noncompliance with mandatory CLE reporting requirements. Attorney Tully failed to disclose her representation of Carolyn I. in the reinstatement petition she filed with the BBE. In addition to handling the real estate matter while her license was suspended, the amended complaint alleged that the deed and transfer return prepared by Attorney Tully for Carolyn I. were not properly prepared and the documents were returned to Attorney Tully by the register of deeds on two occasions.

¶ 11. The amended complaint also alleged that Attorney Tully failed to return several of Carolyn I.'s phone calls and failed to respond to a certified letter from Carolyn I. in which she requested a return of her documents and a refund of the $375 she had paid Attorney Tully.

¶ 12. The amended complaint alleged that by failing to timely record Carolyn I.'s deed and transfer return with the register of deeds, Attorney Tully violated SCR 20:1.3; by failing to respond to Carolyn I.'s telephone calls and her certified letter, Attorney Tully violated SCR 20:1.4(a); by failing to timely refund Carolyn I.'s unearned fee, Attorney Tully violated SCR 20:1.16(d); by representing Carolyn I. in a real estate transaction while her license was suspended for her failure to comply with mandatory CLE reporting requirements, Attorney Tully violated SCR 31.10(1) and SCR 20:8.4(f); by failing to disclose her representation of Carolyn I. on her sworn petition for reinstatement filed with the BBE, Attorney Tully violated SCR 20:8.4(c); and by failing to file a written response to the Carolyn I. grievance investigation, Attorney Tully violated SCR 22.03(6) and SCR 20:8.4(f).

¶ 13. The amended complaint further alleged six counts of misconduct with respect to Attorney Tully's handling of two personal injury matters for William I. while her license was suspended due to her failure to comply with mandatory CLE reporting requirements. Attorney Tully failed to disclose her representation of William I. in the reinstatement petition she filed with the BBE. In addition she failed to respond to several messages left by William I. and failed to forward copies of documents that he had requested.

¶ 14. The amended complaint alleged that by failing, after being retained by William I., to perform any work on his behalf, Attorney Tully violated SCR 20:1.3; by failing to respond to William I.'s telephone calls and failing to provide him with the requested documents, Attorney Tully violated SCR 20:1.4(a); by failing to timely notify William I. and the insurance companies involved in the personal injury actions of her withdrawal from representation of William I. in the personal injury claims, Attorney Tully violated SCR 20:1.16(d); by representing William I. in the two personal injury matters while her license was suspended for her failure to comply with mandatory CLE reporting requirements, Attorney Tully violated SCR 31.10(1) and SCR 20:8.4(f); by failing to disclose her representation of William I. in his personal injury claims on her sworn petition for reinstatement filed with the BBE, Attorney Tully violated SCR 20:8.4(c); and by failing to file a written response to the William I. grievance investigation, Attorney Tully violated SCR 22.03(2) and SCR 20:8.4(f).

¶ 15. The amended complaint also alleged seven counts of misconduct with respect to Attorney Tully's representation of Andrew S. in a personal injury matter during the time her license was suspended for failing to comply with mandatory CLE reporting requirements. Attorney Tully failed to disclose her representation of Andrew S. in the reinstatement petition she filed with the BBE.

¶ 16. Attorney Tully settled Andrew S.'s personal injury matter for $20,000. Attorney Tully is also licensed to practice law in Illinois and maintains a client trust account at an Illinois bank that is not authorized to do business in Wisconsin. Attorney Tully does not maintain a client trust account authorized to do business in Wisconsin and located in Wisconsin.

¶ 17. Attorney Tully deposited the $20,000 settlement check, less $250 cash, in her Illinois trust account. Attorney Tully had Andrew S. sign a settlement sheet and she then disbursed various funds. Attorney Tully received a total of $7900 in attorney's fees from the settlement, $1233.34 more than she was entitled to receive. The settlement sheet signed by Andrew S. indicated that Attorney Tully was withholding $1000 from the settlement amount to pay Libertyville Imaging and that she was withholding an additional $306 to pay Salem Rescue. After the settlement was disbursed, Andrew S. began receiving bills from Libertyville Imaging and Salem Rescue advising they had not received payment from Attorney Tully and that they had tried unsuccessfully to contact her. Andrew S. made several attempts to contact Attorney Tully concerning the bills, and Attorney Tully failed to respond. Andrew S. ended up paying Libertyville Imaging $1000 and Salem Rescue $306.

¶ 18. The amended complaint alleged that by continuing to represent Andrew S. in a personal injury claim while her license was suspended for her failure to comply with mandatory CLE reporting requirements, Attorney Tully violated SCR 31.10(1) and SCR 20:8.4(f); by failing to disclose her representation of Andrew S. in his personal injury matter on her sworn petition for reinstatement filed with the BBE, Attorney Tully violated SCR 20:8.4(c); by maintaining a trust account in an Illinois institution not licensed to do business, or located in Wisconsin and by maintaining Andrew S.'s settlement funds in her Illinois trust account, Attorney Tully violated SCR 20:1.15(a); by disbursing $1233.34 more to herself in attorney's fees from the Andrew S. settlement than she was entitled to receive, converting said funds for her own use, Attorney Tully violated SCR 20:8.4(c); by failing to respond to Andrew S.'s telephone calls regarding his medical bills, Attorney Tully violated SCR 20:1.4(a); by failing to pay two of Andrew S.'s medical creditors after receiving the settlement proceeds and by withholding the amounts due to the creditors from the settlement proceeds, Attorney Tully violated SCR 20:1.15(b); and by failing to file a written response to the Andrew S. grievance investigation, Attorney Tully violated SCR 22.03(2) and SCR 20:8.4(f).

¶ 19. Finally, the OLR's amended complaint alleged four counts of misconduct with respect to Attorney Tully's appearance in front of a court commissioner on behalf of Brian R., after her Wisconsin law license was suspended on May 15, 2003, for her failure to cooperate with two OLR grievance investigations. The OLR's amended complaint noted that this court's May 15, 2003 order stated that Attorney Tully was to comply with all requirements of SCR 22.26 relating to the suspension of her license to practice law in this state.

¶ 20. The amended complaint alleged that by continuing to represent Brian R. after her Wisconsin law license was suspended due to her failure to cooperate with an OLR grievance investigation, Attorney Tully violated SCR 22.26(2) and SCR 20:8.4(f); by failing to notify Brian R. by certified mail of her license suspension and by failing to advise him to seek legal advice elsewhere, Attorney Tully violated SCR 22.26(1)(a) and (b) and SCR 20:8.4(f); by failing to provide notification to the circuit court in the Brian R. matter of her license suspension until an August 14, 2003 court appearance, Attorney Tully violated SCR 22.26(l)(c) and SCR 20:8.4(f); and by failing to file a written supplemental response in the Brian R. matter, Attorney Tully violated SCR 22.03(6) and SCR 20:8.4(f).

¶ 21. Attorney Tully did not answer the amended complaint. The OLR filed a motion for default judgment. A telephone hearing was held on December 22, 2004. Attorney Tully did not appear. The referee issued her report on March 1, 2005.

¶ 22. The referee found that the OLR exercised reasonable diligence in attempting to serve Attorney Tully by personal service in the manner set forth in Wis. Stat. § 801.11(1) and that Attorney Tully could not be served in that manner. The referee found that Attorney Tully was properly served under SCR 22.13(1), which provides that if, with reasonable diligence, the respondent cannot be served under Wis. Stat. § 801.11(l)(a) or (b), "service may be made by sending by certified mail an authenticated copy of the complaint and order to answer to the most recent address furnished by the respondent to the state bar."

¶ 23. The referee concluded that the OLR had met its burden of proof with respect to all of the 29 counts of misconduct alleged in the amended complaint. The referee said Attorney Tully's misconduct warranted substantial discipline. The referee said the misconduct was aggravated by Attorney Tully's failure to respond in any substantive way to this disciplinary matter, her willingness to make false statements to the BBE, and her willingness to continue representing clients and filing new claims while her license to practice law was suspended. The referee said Attorney Tully's actions did not appear to reflect a lack of knowledge about proper procedures or ethics, but instead evinced an outright unwillingness to act with promptness and diligence on her clients' behalf or to take seriously the OLR's concerns about her misconduct. The referee noted that although Attorney Tully has not been formally disciplined in the past, her misconduct over a period spanning several years indicates she is unlikely to change her actions in the future and her blatant disregard for prior temporary suspensions of her license indicates she does not appreciate the gravity of her misconduct.

¶ 24. The referee recommended that Attorney Tully's license to practice law in Wisconsin be suspended for a minimum of two years; that she be ordered to pay full restitution to Andrew S. in the amount of $1306, totaling the amounts he was required to personally pay to his medical creditors; and that she be required to pay the full costs of the proceeding, which are $1878.01 as of March 23, 2005. The referee recommended that this court not make the suspension retroactive to the date of the current temporary suspension because Attorney Tully practiced law numerous times during the temporary suspensions and she should not benefit from a retroactive suspension and the ability to petition for the reinstatement of her license at an earlier date. Finally, the referee recommended that during the period of suspension Attorney Tully be required to attend continuing legal education courses and that before she is reinstated she be required to demonstrate an understanding of the relationship between her misconduct and both the consequences suffered by her clients and the damage to the public's perception of the legal profession.

¶ 25. A referee's findings of fact are to be affirmed unless they are clearly erroneous. In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). Conclusions of law are reviewed de novo. In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W2d 718. The record supports the referee's findings of fact and conclusions of law and we adopt them.

¶ 26. We also adopt the referee's recommendation regarding the discipline to he imposed in this case. Attorney Tully engaged in multiple counts of misconduct involving multiple clients. Her repeated willingness to continue practicing law during the time she knew her license was suspended is particularly troublesome and exhibits a blatant disregard for this court's rules and orders. A two-year suspension of her license to practice law, coupled with the additional conditions recommended by the referee, is an appropriate level of discipline for her misconduct.

¶ 27. IT IS ORDERED that the license of Attorney Michelle L. Tully to practice law in Wisconsin is suspended for a period of two years effective August 17, 2005.

¶ 28. IT IS FURTHER ORDERED that, if she has not already done so, Attorney Tully comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended.

¶ 29. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Tully shall pay to the Office of Lawyer Regulation the costs of this proceeding. If those costs are not paid within the time specified, and absent a showing to this court of an inability to pay those costs within that time, the license of Attorney Tully to practice law shall remain suspended indefinitely until further order of the court.

¶ 30. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Tully shall pay full restitution to Andrew S. in the amount of $1306.

¶ 31. IT IS FURTHER ORDERED that, as a condition of her reinstatement to the practice of law in Wisconsin in the future, during the time of her suspension Attorney Tully shall attend continuing legal education courses and, as a further condition of her reinstatement, she shall be required to demonstrate an understanding of the relationship between her misconduct and both the consequences suffered by her clients and the damage to the public's perception of the legal profession.

       SCR 22.03(4) provides in pertinent part: Investigation.
      (4) If the respondent fails to respond to the request for written response to an allegation of misconduct or fails to cooperate in other respects in an investigation, the director, or a special investigator acting under SCR 22.25, may file a motion with the supreme court requesting that the court order the respondent to show cause why his or her license to practice law should not be suspended for willful failure to respond or cooperate with the investigation....

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

       SCR 20:1.16(d) provides: Declining or terminating representation.
      (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 22.03(2) provides in pertinent part: Investigation.
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated.... 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... . [T]he 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 20:8.4(f) provides: Misconduct. "It is professional misconduct for a lawyer to: (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       SCR 31.10(1) provides: Noncompliance.
      (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 board 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.

       SCR 22.03(6) provides: Investigation. "(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 misrepresentations in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

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

       SCR 20:1.15(a) provides in pertinent part: Safekeeping property.
      (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. . . . 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. . . .

       SCR 20:1.15(b) provides: Safekeeping property.
      (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 22.26 provides in pertinent part: Activities following suspension or revocation.
      (1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do ... the following:
      (a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation.
      (b) Advise the clients to seek legal advice of their choice elsewhere.
      (c) Promptly provide written notification to the court of administrative agency and the attorney for each party in a matter pending before a court or administrative agency of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation. The notice shall identify the successor attorney of the attorney's client or, if there is none at the time notice is given, shall state the client's place of residence.

       SCR 22.26(2) provides: Activities following suspension or revocation.
      (2) An attorney whose license to practice law is suspended or revoked or who is suspended from the practice of law may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel, except that the attorney may engage in law related work in this state for a commercial employer itself not engaged in the practice of law.


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

      No. 2005AP838-D.

      Decided July 6, 2005.

    2005 WI 102
    (Also reported in 698 N.W.2d 821.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Joseph Engl and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12 concerning Attorney Engl's professional misconduct in using a computer to facilitate a child sex crime. The parties stipulated that the appropriate discipline to impose for that professional misconduct is a public reprimand.

¶ 2. We approve the stipulation and adopt the stipulated findings of fact and conclusions of law. We also accept the parties' stipulation that a public reprimand is the appropriate discipline for Attorney Engl's misconduct.

¶ 3. Attorney Engl was admitted to practice law in Wisconsin in 2002 and lives in Milwaukee. He has not previously been disciplined. In April 2004, while working at his former law firm, Attorney Engl entered an internet chat room where he engaged in a conversation with a detective who was posing as a fourteen-year-old girl. Attorney Engl expressed interest in having sex with the girl and arranged to meet her that evening. When he arrived at the prearranged meeting site, Attorney Engl was arrested. He was charged with one count of using a computer to facilitate a child sex crime, in violation of Wis. Stat. § 948.075(1) (2003-04), a Class D felony. He entered a guilty plea to the charge and was convicted. The trial court withheld its sentence and placed Attorney Engl on four years probation with conditions that he undergo counseling and evaluation for sex offender treatment; that he have no unsupervised conduct with females under the age of 18 except for relatives; that he not visit chat rooms or sexual websites; that he not engage in instant messaging; that he submit a DNA sample; that he not possess firearms; and that he be assessed costs. Attorney Engl's former law firm terminated his employment when the criminal charge was filed.

¶ 4. Attorney Engl and the OLR have stipulated that by using a computer to facilitate a child sex crime, Attorney Engl violated SCR 20:8.4(b). The stipulation states that the parties agree that an appropriate level of discipline to impose in response to the misconduct is a public reprimand. In explaining why a public reprimand, rather than a more serious sanction, is appropriate the stipulation points to a number of mitigating factors: Attorney Engl had no prior disciplinary history; at the time the incident occurred he was experiencing extreme stress, was working excessively long hours, and his mother had recently died; he cooperated with criminal investigators and with the OLR and is remorseful; the arrest resulted in media coverage; he was convicted of a felony and placed on four years probation with various conditions; he was fired from his job; and he provided reports from three therapists who evaluated him and gave the opinion that he is unlikely to re-offend.

¶ 5. Attorney Engl represents that he understands the misconduct allegations and the ramifications if the court should impose the stipulated level of discipline. He indicates that he fully understands his right to contest the matter and his right to consult with counsel. He states he is represented by counsel in the matter and that he entered into the stipulation knowingly and voluntarily. Attorney Engl states that he admits the misconduct and assents to the level and type of discipline sought by the OLR director. The stipulation further indicates that neither the misconduct charged nor the level of discipline sought is the result of plea bargaining.

¶ 6. We adopt the findings of fact and conclusions of law to which the parties have stipulated concerning Attorney Engl's professional misconduct. After considering the seriousness of the misconduct and the various mitigating factors presented in this case, we conclude that it is appropriate to impose a public reprimand.

¶ 7. IT IS ORDERED that Attorney Joseph Engl is hereby publicly reprimanded.

       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.

       SCR 20:8.4(b) provides: Misconduct. "It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."