author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Edwin W. Conmey, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. Edwin W. Conmey, Respondent-Appellant.
    Supreme Court

      No. 2003AP517-D.

      Submitted on briefs September 30, 2005.

      Decided December 13, 2005.

    2005 WI 166
    (Also reported in 706 N.W.2d 633.)

      For the respondent-appellant there were briefs by Edwin W. Conmey, Oconomowoc.
    For the complainant-respondent there was a brief by Marc T. McCrory soadBrennan, Steil & Basting, S.C., Janesville.
   PER CURIAM.

¶ 1. Attorney Edwin W Conmey has appealed from a referee's report concluding that he engaged in professional misconduct and recommending that his license to practice law in Wisconsin be revoked.

¶ 2. We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We further determine that the seriousness of Attorney Conmey's misconduct warrants the revocation of his license to practice law in Wisconsin. We also agree with the referee that the costs of the proceeding should be assessed against Attorney Conmey and that he be required to make restitution to the State Bar of Wisconsin Client Security Fund.

¶ 3. Attorney Conmey was admitted to practice law in Wisconsin in 1968 and practices in Oconomowoc. He has not previously been the subject of a disciplinary action.

¶ 4. In June 2003 the Office of Lawyer Regulation (OLR) filed an amended complaint alleging that Attorney Conmey engaged in eight counts of professional misconduct with respect to his handling of two estates. The amended complaint alleged five counts of misconduct with respect to Attorney Conmey's handling of the C.G. estate. Attorney Conmey drafted a last will and testament for C.G. which was executed in front of witnesses on March 15, 1991. Attorney Conmey appointed himself as personal representative for the administration of the estate and provided that he would serve without bond. C.G. died on March 31, 1995. On April 3, 1995, Attorney Conmey was appointed special administrator of C.G.'s estate, and on May 16, 1995, he was appointed personal representative. The informal administration of the estate commenced in April 1995. Attorney Conmey remained personal representative and attorney for the estate until September 4, 2001.

¶ 5. On May 6, 1999, Attorney Conmey filed a final account and petition indicating that the estate's assets consisted primarily of a residence on Okauchee Lake, personal property, a vehicle, miscellaneous investments, and collections of baseball cards, firearms, coins and comic books. The final account listed the gross value of the estate at $432,227 and showed undistributed assets of $96,610. The final account listed a claim for attorney fees in that same amount. The amount of requested attorney fees was based on Attorney Conmey's invoice dated April 29, 1999 in the amount of $98,418 describing services rendered from March 31, 1995 through September 17, 1997. Attorney Conmey billed his time at rates up to $210 per hour. The invoice claimed 548 hours were expended on the estate, including legal, nonlegal and nonlawyer time. According to the OLR's amended complaint, the bill included hourly charges for attending C.G.'s funeral, snow removal, checking C.G.'s house, starting a dehumidifier, putting a battery charger on the estate's truck, setting a thermostat and plugging in a refrigerator.

¶ 6. The OLR's amended complaint alleged in less than a two-year period, Attorney Conmey distributed from two estate checking accounts and his trust account more than $97,000 of estate funds to himself and his law firm for fees. The amended complaint alleged most of this money could not have been reasonably considered legal fees in light of the work Attorney Conmey performed for C.G.'s estate.

¶ 7. On May 1, 2000, a hearing was held before Judge Lee Dreyfus, Jr. for approval of Attorney Conmey's personal representative fees and attorney fees. It became evident at the hearing that Attorney Conmey had been disbursing estate funds to himself during his administration of the estate. On May 26, 2000, the circuit court issued an order finding that the estate should pay Attorney Conmey attorney fees of $21,875 for his professional services based on a fee of $175 per hour for 125 hours which was found' by the court to be work of a professional legal nature. The court also ordered C.G.'s estate to pay Attorney Conmey $8645 as a personal representative's commission, based on 2 percent of the value of the inventory of the assets as of April 30, 1999. The court found that Attorney Conmey overcharged the estate by requesting a total of $98,418 for a combination of attorney fees and personal representative fees. The court ordered Attorney Con-mey to repay the estate $67,338 of excess fees he took from the estate without court approval. The court ruled that the vast majority of time spent by Attorney Con-mey on the estate was personal representative time, compensation for which is capped by statute at 2 percent of the value of the estate. The court further concluded that all legal billable time should have been completed by June 1996 and it found that the estate should have been closed in the year 1997.

¶ 8. The circuit court directed that all final documents and closing documentation for C.G.'s estate were to be filed within 30 days of May 1, 2000. An order to show cause hearing was scheduled for July 21, 2000 at which time Attorney Conmey represented to the court that the estate would be closed when he received the closing certificate from the State of Wisconsin. Nine months later, on April 21, 2001, the estate was again before Judge Dreyfus, at which time Attorney Jeffrey Kaczmarski objected to any additional attorney fees being paid to Attorney Conmey.

¶ 9. Attorney Conmey asked to resign as personal representative of C.G.'s estate and asked the court to allow him 30 days to close the estate. On May 23, 2001, the matter was again before Judge Dreyfus to determine why the estate had not yet been closed. Attorney Conmey said he was waiving any additional attorney fees he had previously requested, and he asked for an extension until the end of June 2001 to close the estate. The court indicated if the estate was not closed by June 29, 2001 the court would discharge Attorney Conmey as personal representative and would appoint a successor personal representative.

¶ 10. On September 6, 2001, Judge Dreyfus issued an order discharging Attorney Conmey as personal representative for the C.G. estate and appointed Attorney George Love as successor personal representative. Shortly after Attorney Love was appointed successor personal representative, he filed a civil action on behalf of C.G.'s estate in Waukesha County Circuit Court alleging that Attorney Conmey had converted $67,338 of the estate to his own personal use. The estate sought treble damages as it alleged the civil conversion constituted embezzlement for purposes of the criminal code and thus triggered the possibility of a treble damage award under Wis. Stat. § 895.80 (2001-02).

¶ 11. Attorney Love filed a motion for summary judgment in February 2002. The circuit court granted the estate's motion and ordered that the estate recover the amount of $67,338 plus interest of $20,658. The court denied the estate's motion for summary judgment on the treble damages claim, finding there was an open issue on Attorney Conmey's intent.

¶ 12. The intent issue was tried to a jury in October 2002. The jury returned a special verdict finding that Attorney Conmey had transferred, used and retained the sum of $67,338 of C.G.'s estate with the intent to convert the money to his own use. Following motions after verdict, a judgment was entered against Attorney Con-mey on November 18, 2002 in the amount of $179,704. Of that amount, $67,338 was awarded to the State Bar of Wisconsin Client Security Fund, which had paid that amount to the C.G. estate after determining that Attorney Conmey had acted dishonestly in the matter. The balance was awarded to C.G.'s estate.

¶ 13. Attorney Conmey appealed the judgment. The court of appeals summarily affirmed on February 25, 2004. Attorney Conmey's principal argument on appeal was that the attorney who represented him in the civil action provided ineffective assistance of counsel. This court denied a petition for review. To date Attorney Conmey has paid less than $2500 on the judgment.

¶ 14. The OLR's amended complaint also alleged that Attorney Conmey engaged in misconduct with respect to his handling of the E.S. estate. In 1983 Attorney Conmey prepared a will for E.S. in which he was designated as the alternate personal representative. He became the primary personal representative upon the death of E.S.'s husband. In 1995 Attorney Conmey prepared a codicil to E.S.'s will which addressed only her burial. E.S. died in July 1998. Attorney Conmey filed her will and codicil with the Waukesha County Circuit Court, and he was appointed personal representative. The beneficiaries of the estate were E.S.'s son, K.S., and her grandchildren, M.S. and E.S-H.

¶ 15. The E.S. estate was opened in July 1998. Attorney Conmey failed to timely file the estate's inventory. Wisconsin has an 18-month deadline to close estates. In January 2000 the Waukesha County Register in Probate sent Attorney Conmey a notice of delinquent estate. Attorney Conmey repeatedly requested and received extensions to close the E.S. estate, saying he needed additional time in order to prepare the final fiduciary income tax returns and obtain a closing certificate.

¶ 16. Attorney Conmey filed a final account in the E.S. estate on November 14, 2000. In the final account he indicated that he had received $8997 for attorney fees and he also listed $7856 to be paid to him for personal representative fees. Attorney Conmey did not obtain or seek court approval to pay himself both his attorney fees and personal representative fees prior to his receipt of the attorney fees.

¶ 17. The Waukesha County Register in Probate objected to Attorney Conmey taking both attorney fees and personal representative fees without court approval. Attorney Conmey was given the option to petition the court to allow both fees. He indicated he would not ask the court to approve both fees and said he would take only the personal representative fee and would not retain the attorney fees.

¶ 18. On February 20, 2001, Attorney Conmey filed a closing certificate for fiduciaries and informed the court he would be closing the estate within 30 days. During a hearing on May 8, 2001, Attorney Conmey said he was not taking the attorney fees, and he agreed to refund the $8997 he had previously paid himself from estate funds. The circuit court required Attorney Con-mey to file an amended final account and amended income tax return and obtain a new closing certificate from the Wisconsin Department of Revenue. He filed amended tax returns in May 2001. During hearings in June and September 2001, he told the circuit court he was still waiting for the new closing certificate from the Wisconsin Department of Revenue. In November 2001 he wrote to the Department of Revenue requesting the closing certificate.

¶ 19. Because the estate was not closed, the circuit court held monthly status hearings from November 2001 to March 2002. During a hearing on December 18, 2001, Attorney Conmey presented the amended closing certificate and partial receipts on incorrect forms that did not include the distribution of $8997 that he was supposed to return to the estate for attorney fees he had previously paid himself without court approval.

¶ 20. On January 8, 2002, the Waukesha County Register in Probate requested formal probate proceedings before the probate judge due to Attorney Conmey's extreme delay in closing E.S.'s estate. During hearings in January, February and March 2002, Attorney Conmey told the court he needed to obtain receipts from one of the beneficiaries, M.S., who was traveling overseas.

¶ 21. On March 21, 2002, Attorney Conmey sent final distribution checks to the three beneficiaries of the estate for the $8997 he had previously paid himself for attorney fees. The checks were issued from Attorney Conmey's business checking account at First Bank Financial Center. Checks were written to K.S. for $4498, to M.S. for $2249, and to E.S-H. for $2249. Two of those checks bounced.

¶ 22. An order to show cause hearing was held on April 29, 2002 with K.S. and M.S. appearing by telephone and Attorney Conmey appearing in person. The circuit court instructed K.S. and M.S. to redeposit their checks and appear at a further hearing on May 6, 2002. In a letter dated May 2, 2002, M.S. informed the court and the register in probate that on April 30, 2002 Attorney Conmey's bank had informed M.S. that Attorney Conmey's account did not have sufficient funds to cover the two outstanding checks, that Attorney Con-mey left M.S. a message saying he had deposited sufficient funds that morning to cover the checks, and during the April 29, 2002 hearing, Attorney Conmey said he had sufficient funds in his account to cover the checks. M.S. told the court that Attorney Conmey had made a number of misstatements relating to the dishonored checks.

¶ 23. During a May 6, 2002 hearing, the circuit court called a recess and asked M.S. to call Attorney Conmey's bank to see if the check had cleared. M.S. spoke with a bookkeeper at the bank and was informed his check had in fact cleared on May 1 and that KS.'s check had cleared on May 3. M.S. reported that conversation to the court when the hearing resumed. The information from the bank that KS.'s check had cleared, however, was incorrect. K.S. called Attorney Conmey's bank that same day and was told by an assistant vice-president that the check payable to K.S. had been rejected for insufficient funds. In a letter to the court dated May 6, 2002, K.S. said Attorney Conmey had continued to give him false information regarding the final distribution check and also said the check had twice been presented and twice rejected for insufficient funds.

¶ 24. First Bank Financial Center's assistant vice-president wrote to the register in probate on May 7, 2002 stating that Attorney Conmey's check to K.S. was presented for payment on May 3, 2002 and on that date Attorney Conmey's business account had a balance of only $33, so presenting the check overdrew the account to a negative $4465. The bank official said Attorney Conmey deposited $2400 into his account on May 4, 2002, which left a negative balance in the account of $2065. The probate court held status conferences on May 13 and June 3, 2002. At the June 3 conference K.S. informed the court that he had finally received his money and that all checks had cleared.

¶ 25. The OLR's amended complaint alleged the following counts of misconduct with respect to the C.G. estate:

Count 1: By failing to timely conclude and close the estate and to meet court imposed deadlines to do so,
Conmey failed to act with reasonable diligence and promptness in representing the client in violation of SCR 20:1.3.
Count 2: By claiming a fee of $98,418.00 for an apparent combination of attorneys fees and personal representative fees when, in fact, the vast majority of the time expended was non-professional services, Conmey charged a fee that was unreasonable contrary to SCR 20:1.5(a).
Count 3: By disbursing funds from the estate to himself as legal fees without court approval and then failing to place those funds back in trust after learning that the beneficiaries disputed his fees, Conmey failed to treat the funds as trust property until there was an accounting and severance of his and the beneficiaries' interests, in violation of [former] SCR 20:1.15(d).
Count 4: By converting funds from the estate to his own use during his representation of the [C.G.] estate, Con-mey engaged in conduct involving dishonesty, fraud, deceit and misrepresentation contrary to SCR 20:8.4(c)
Count 5: By drafting a will which named him as the personal representative of the estate, Conmey drafted a will which required or implied that his services were to be used in relationship to that will, contrary to SCR 20;7.3(f).

¶ 26. The OLR's amended complaint also alleged the following counts of misconduct with respect to the E.S. estate:

Count 6: By failing to timely conclude and close the [E.S.] estate and meet court-imposed deadlines in that matter, Conmey failed to act with reasonable diligence and promptness in representing the client in violation of SCR 20:1.3.
Count 7: By disbursing funds from the [E.S.] estate to himself as legal fees and disbursing additional estate funds to himself as personal representative fees, without first obtaining court approval, Conmey violated a statute regarding the conduct of lawyers [Wis. Stat. § 857.05(3)1, contrary to SCR 20:8.4(f).
Count 8: By issuing refund checks to beneficiaries in the [E.S.] estate from his business account when he knew or acted with reckless disregard as to whether there were insufficient funds in his account to cover the checks, Conmey engaged in conduct involving dishonesty, fraud, deceit or misrepresentation contrary to SCR 20:8.4(c).

¶ 27. Attorney Eugene A. Gasiorkiewicz was appointed referee in this matter. The OLR filed a motion for partial summary judgment. After receiving briefs, the referee issued an order dated February 26,2004 granting the OLR's motion for summary judgment with respect to Counts 1, 2, 3, 4, 7 and 8 of the amended complaint.

¶ 28. A hearing was held before the referee on April 12, 2004 on the remaining counts. The referee issued his report on June 10, 2004. He concluded that the OLR failed to meet its burden of proof with respect to Count 5 of the amended complaint, but he found that the OLR did meet its burden of proof with respect to Count 6.

¶ 29. With respect to the appropriate discipline to impose for the misconduct, the referee noted that the conversion of funds to an attorney's personal use has long been considered an offense punishable by revocation. The referee said:

I have searched the record to find some explanation for this conduct. Mr. Conmey appears in good health. Mr. Conmey appeared intelligent and articulate in his presentation at the hearing in this matter. He believes that he was entitled to the monies he took in at least the [C.G.] estate.. . .
In view of Mr. Conmey's unwillingness to recognize his errors in these matters, I am unable to state that they would not happen again. He has continued to offer explanation as to why he was entitled to the totality of his claimed fee in the [C.G.] estate, even after judicial review had taken place, and finds justification in issuing worthless checks in the [E.S.] estate.
Mr. Conmey has refused to settle with the [C.G.] estate the legal fee dispute, and has not settled with the subrogated State Bar of Wisconsin Client's Security Fund. The Court of Appeals found that Mr. Conmey's appeal "borders on the frivolous." He disbursed to himself and utilized nearly one-fifth of the [C.G.] Estate assets without court approval. When ordered to repay the estate, he neither complied nor placed the disputed amount in his trust account.

¶ 30. The referee concluded that revocation of Attorney Conmey's license was the appropriate sanction for his numerous violations. The referee also recommended that Attorney Conmey be ordered to repay the State Bar of Wisconsin Client Security Fund $67,338.15 plus interest from October 16, 2002 forward, and that he be ordered to pay the costs of this proceeding, which are $9963.35 as of October 3, 2005.

¶ 31. Attorney Conmey appealed the referee's decision, arguing that the referee improperly relied on the court of appeals decision upholding the treble damage award in the C.G. estate and that the referee improperly relied on three unsworn testimony letters in the E.S. estate circuit court file. As to the C.G. estate, Attorney Conmey's principal argument is that because he was "charged with the crime of theft," he was entitled to the effective assistance of counsel. He blames the attorney who represented him in the civil lawsuit for his problems. He argues that his attorney intentionally kept him in the dark, and he asserts that by failing to meet court imposed deadlines for jury instructions, his attorney failed to act with reasonable diligence and promptness in representing him and denied him the opportunity to make informed decisions.

¶ 32. Attorney Conmey continues to argue that his accounts in the C.G. estate "were detailed, open and honest," and he believes he was entitled to the money he took as fees.

¶ 33. With respect to the E.S. estate, Attorney Conmey argues that the referee improperly relied on three unsworn letters that were in the E.S. estate court file. The letters at issue were written by beneficiaries of the E.S. estate to the circuit court. One of the letters said that Attorney Conmey had been "untrustworthy, uncommunicative, and unprofessional." Another letter said, "Mr. Conmey has given false information and failed to follow through on promises he has made to cover this check."

¶ 34. While the referee did not make any specific findings of fact based on these letters, in finding of fact number 79, the referee said, "[bjeneficiaries of the [E.S.] estate called [the register in probate] on multiple occasions and sent letters to the court complaining about the delay in Mr. Conmey's handling of the estate." Attorney Conmey argues that the hearsay rule prevents the admission of unsworn written statements in court proceedings, and since the writers of the letters were not called to testify, he was unable to challenge the weight of the unsworn statements. He asserts if he had been given the opportunity to cross-examine the persons writing the letters he could have exposed the writers' motives and prejudices and shown "that their posturing was pure and simple a pitch to the probate court in a futile attempt to force respondent to refund his personal representative's fee as well as his attorney's fees."

¶ 35. With respect to the referee's recommendation that his license to practice law be revoked, Attorney Conmey argues, "[t]hat is a pretty severe sanction in view of respondent's thirty-five years of law practice and the fact that he has not been the subject of disciplinary proceedings before and was cooperative with the investigation in this matter."

¶ 36. The OLR argues that the referee relied on the record when finding that Attorney Conmey converted funds from the C.G. estate, and the OLR says nothing in the referee's summary judgment decision of February 26, 2004 reflecting that the referee even knew the court of appeals had ruled on the appeal in the treble damages action on February 25, 2004. The OLR argues that the referee was able to rule on the C.G. estate misconduct based solely on Attorney Conmey's admissions in his answer, his prior testimony in the circuit court litigation, and the court records.

¶ 37. The OLR also asserts that Attorney Conmey's argument that the referee improperly relied on three unsworn testimony letters lacks merit. It says again the referee's findings of fact with respect to the E.S. estate are based entirely on Attorney Conmey's own admissions and testimony. The OLR points out that Attorney Conmey admitted in his deposition, which was read to him at the referee's hearing, that he wrote checks in the E.S. estate when he knew he did not have money in his account to cover them. While the OLR notes that the referee did discuss the three "unsworn" letters in his report, he did so outside the findings of fact and conclusions of law in the portion of the report discussing the aggravating and mitigating circumstances of the case. In that regard the referee noted that during the pendency of the E.S. estate various letters written to the court summarized the damage done by Attorney Conmey to the legal profession. The OLR says the letters were not offered at the hearing to prove the truth of the matters contained therein, and it says the referee appropriately used some direct quotes from the letters to echo his own sentiment that Attorney Conmey's misconduct has hurt the public's perception of the legal profession.

¶ 38. A referee's findings of fact are affirmed unless clearly erroneous. Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever sanction it deems appropriate regardless of the referee's recommendation. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686. Since the referee's findings of fact in this case have not been shown to be clearly erroneous, we adopt them. We also agree with the referee's conclusions of law. We further agree with the referee's recommendation that Attorney Conmey's license be revoked and that he be required to repay the Client Security Fund and pay the costs of this proceeding.

¶ 39. Conversion of client funds by an attorney is a very serious offense. Attorney Conmey overpaid himself more than $67,000 in the C.G. estate and so far has repaid less than $2500. Throughout the civil suit and the OLR proceeding, Attorney Conmey has refused to admit any wrongdoing, instead blaming the lawyer he hired to represent him in the civil case. His arguments that the referee improperly relied on the court of appeals decision in the civil suit filed in the C.G. estate and that the referee improperly relied on unsworn letters sent to the circuit court in the E.S. estate are meritless.

¶ 40. As the referee noted, the conversion of funds to a lawyer's personal use has long been considered an offense punishable by revocation. See, e.g., In re Disciplinary Proceedings Against Landa, 157 Wis. 2d 510, 461 N.W.2d 141 (1990). Given the amount of money involved and Attorney Conmey's complete lack of remorse, there is no reason to depart from that general rule here. It is also appropriate to order Attorney Conmey to repay the Client Security Fund the money that it has paid out plus interest, and to require him to pay the costs of this proceeding.

¶ 41. IT IS ORDERED that the license of Attorney Edwin W Conmey to practice law in Wisconsin is hereby revoked, effective January 24, 2006.

¶ 42. IT IS FURTHER ORDERED that Edwin W Conmey repay the State Bar of Wisconsin Client Security Fund the amount of $67,338.61 plus interest from October 16, 2002.

¶ 43. IT IS FURTHER ORDERED that within 60 days of the date of this order, Edwin W Conmey pay to the Office of Lawyer Regulation the costs of this proceeding.

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

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

       SCR 20:1.5(a) provides that a lawyer's fee shall be 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;
      (6) 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.

       Former SCR 20:1.15 applies to misconduct committed prior to July 1, 2004. Former SCR 20:1.15(d) Safekeeping property provides:
      (d) When, in the representation, a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be treated by the lawyer as trust property until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall continue to be treated as trust property until the dispute is resolved.

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

       SCR 20:7.3(f) provides that "[e]xcept as permitted under SCR 11.06, a lawyer, at his or her instance, shall not draft legal documents, such as wills, trust instruments or contracts, which require or imply that the lawyer's services be used in relation to that document."

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


source: Caselaw Access Project

license: Public Domain

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

      No. 2003AP2935-D.

      Decided December 13, 2005.

    2005 WI 165
    (Also reported in 706 N.W.2d 661.)
   PER CURIAM.

¶ 1. We review the report and recommendation of the referee that Attorney David J. Winkel be publicly reprimanded for professional misconduct, that he be ordered to pay restitution in the amount of $934, and that he be ordered to pay the costs of this proceeding.

¶ 2. On October 27, 2003 the Office of Lawyer Regulation (OLR) filed a complaint and order to answer against Attorney Winkel. The complaint alleged two counts of professional wrongdoing. Count I alleged that Attorney Winkel violated SCR 20:8.4(c) by submitting a fee request to the Social Security Administration (SSA) that misrepresented the amount of time spent by his firm in handling a case on behalf of client J.T. Count II alleges that Attorney Winkel violated SCR 20:1.5(c) by failing to enter into a written contingency fee agreement with J.T. and B.T. concerning the social security matter. Winkel submitted an answer that denied the majority of the substantive allegations and denied any wrongdoing.

¶ 3. Attorney Curry First was appointed as referee in the matter. Referee First conducted a hearing on December 1 and 2, 2004. The OLR and Attorney Winkel's counsel thereafter filed post-hearing briefs and proposed findings of fact and conclusions of law.

¶ 4. Referee First filed his report and recommendation on June 21, 2005. In summary, the report found that Attorney Winkel had not violated ethical rules concerning the execution of a contingency fee agreement as alleged in Count II, but had improperly misrepresented his firm's time and billing charges in submitting a fee application to the SSA as alleged in Count I. The referee's report agreed with the OLR's recommendation that a public reprimand be issued to Attorney Winkel on the billing issue.

¶ 5. Neither Attorney Winkel nor the OLR appealed from the referee's report. Accordingly, this court's review proceeds pursuant to SCR 22.17(2). The referee's findings of fact are to be affirmed unless they are clearly erroneous. See In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). The referee's conclusions of law, however, are subject to de novo review. See In re Disciplinary Proceedings Against Carroll, 2001 WT 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718.

¶ 6. Following our review of the record, we approve and adopt the referee's findings of fact and conclusions of law and determine that the seriousness of Attorney Winkel's misconduct warrants the imposition of a public reprimand. We also agree with and adopt the referee's recommendation that Attorney Winkel be ordered to pay restitution to J.T. in the amount of $934.

¶ 7. Attorney Winkel was admitted to practice in Wisconsin in 1984. He is the sole shareholder in his firm, which is located in Neenah. Attorney Winkel's prior disciplinary history includes a public reprimand in April 1998 for failing to adequately prepare to represent his clients and to explain their legal matters to them, for failing to competently represent a client in an estate matter, for misrepresenting that he had prepared a document, for failing to respond to successor counsel's requests, and for failing to respond to the disciplinary investigation. See In re Disciplinary Proceedings Against Winkel, 217 Wis. 2d 339, 577 N.W.2d 9 (1998).

¶ 8. The referee made the following factual findings. J.T. and B.T., husband and wife, initially became clients of Attorney Winkel's firm in 1995 in connection with a tax matter. At that time, they signed a retainer agreement that provided for charges on an hourly basis. The retainer agreement did not mention any representation concerning a social security disability claim.

¶ 9. Attorney Winkel directed the work on the tax file to his associate. At some point in the next several months, Attorney Winkel's law firm was also engaged to represent J.T. concerning a social security disability claim. As found by the referee, Attorney Winkel urged his associate to have J.T. and B.T. sign a contingency fee agreement for this new matter. Attorney Winkel testified that he recalled the associate telling him that J.T. and B.T. had signed a contingency fee agreement. At the hearing, the associate did not recall whether the clients had in fact signed such an agreement or whether he had told Attorney Winkel that they had. Ultimately, no such agreement was found. Many of the associate's time slips, however, indicate through a billing code that his work on the social security matter was on a contingency fee basis.

¶ 10. In January 1997, an attorney advisor for the SSA notified J.T. and Attorney Winkel's associate that she had determined that J.T. was eligible for benefits. Within a few weeks after this notification, the associate left Attorney Winkel's firm to form his own practice. Shortly after the associate left Attorney Winkel's firm, Attorney Winkel received a favorable final decision from the SSA. The referee found that Attorney Winkel then "pressured" J.T. and B.T. to continue the social security matter with Attorney Winkel's firm instead of transferring it to the associate's new firm. Attorney Winkel also convinced them to agree to present the fee petition to the SSA as a contingency fee arrangement because Attorney Winkel claimed that to do otherwise would delay the final resolution of J.T.'s social security claim and his receipt of back benefits.

¶ 11. Prior to meeting with J.T. and B.T., Attorney Winkel prepared a draft fee petition to the SSA showing total hourly fees of $6250 and requesting a 25 percent contingency fee (which would have equaled a fee of $5813.45). Attorney Winkel showed this draft petition to J.T. and B.T. at their in-person meeting. B.T. acknowledged that her husband signed the fee application, and understood and agreed to Attorney Winkel receiving a 25 percent contingency fee on the social security recovery.

¶ 12. Because no contingency fee agreement had been filed with the SSA prior to the award of benefits, as described above, Attorney Winkel was required to submit a fee petition that itemized the amount of time spent on each service provided during the case. Attorney Winkel prepared the itemized fee petition by reconstructing the amount of time that he believed the associate would have spent on the tasks that were performed. Attorney Winkel allegedly performed this reconstruction by estimating how long it would have taken him to perform the same task.

¶ 13. Attorney Winkel testified that he prepared the fee petition using this reconstruction methodology because his former associate had a history of failing to record or of underrecording the time that he spent on a file. Attorney Winkel claimed that certain tasks performed on the J.T. social security file were not contained in the associate's prior time slips. Attorney Winkel, however, never attempted to contact his former associate concerning his time entries or the work performed on the file. The referee concluded that Attorney Winkel's failure to consult his former associate stemmed from Attorney Winkel's inappropriate conduct in pressuring J.T. and B.T. to keep the social security matter with Attorney Winkel.

¶ 14. Ultimately, Attorney Winkel's reconstructed fee application showed 30 billable hours while the original time slips (as shown on informational invoices sent to J.T. and B.T.) showed a total of 12.8 billable hours for the same time period.

¶ 15. At the hearing, the associate testified that he believed that his time slips and the original invoices sent to J.T. and B.T. were accurate concerning the work performed and fees charged. He stated that he did not recall any problems with failing to record all of his time on the J.T. social security matter, although he admitted having discussions with Attorney Winkel generally about failing to capture all of his time.

¶ 16. The referee found that Attorney Winkel had disclosed to the SSA's representative that his fee petition was based on a reconstruction of his firm's hourly charges. Ultimately, the SSA appears to have handled the matter as if it were a contingent fee arrangement. In contingency situations, social security regulations provide for an award of attorney's fees of either 25 percent of the recovery or $4000, whichever is less. In this instance, social security initially awarded Attorney Winkel fees of $5813.45 based on a calculation of 25 percent of the recovery, but then corrected its error and reduced the attorney's fees to $4,000.

¶ 17. The referee concluded that Attorney Winkel's reconstruction methodology had resulted in him misrepresenting to the SSA the amount of time spent and the fees earned by his firm in prosecuting J.T.'s social security claim. The referee focused on two facts that pointed in the direction of the fee application overstating the fees earned.

¶ 18. First, the initial time slips submitted by the associate (and billed on invoices to J.T. and B.T.) showed a total billable amount of 12.8 hours while the reconstructed fee petition showed a total of 30 billable hours for the same time period. The referee concluded that since the amount of time more than doubled without adequate explanation by Attorney Winkel, the fee application misrepresented the overall time actually spent on the file. Usually, the exercise of billing judgment results in the reduction of time whereas here it resulted in the time being more than doubled.

¶ 19. Second, the referee found that Attorney Winkel's intentional failure to consult his former associate concerning the fee application supported the conclusion that the fee application was overstated. Indeed, Attorney Winkel admitted that, in certain circumstances, without his former associate's input he had no verifiable way of knowing whether the associate's time was inaccurate. The referee found that Attorney Winkel failed to explain why he increased many of the associate's time entries. The referee pointed out nine examples of such enhancement, and noted that logic and experience support only one situation where it appears that the associate may have underreported his time. Moreover, if Attorney Winkel, in preparing the fee application, was estimating how long it would have taken him to perform the identified tasks, the amounts should not have increased by such a large amount given the fact that Attorney Winkel was much more experienced than his associate at prosecuting social security appeals.

¶ 20. In light of the more than doubling of his firm's contemporaneous time entries without adequate explanation, the referee concluded that Attorney Winkel had misrepresented his firm's hourly fees on his initial application to the SSA in violation of SCR 20:8.4(c).

¶ 21. Based on our review of the matter, the referee's findings concerning the fee application overstating the number of hours spent and the amount of fees earned are not clearly erroneous and are adopted by the court. They support the referee's legal conclusion that Attorney Winkel misrepresented those items to the SSA in violation of SCR 20:8.4(c), and we agree with that conclusion. Although there may in fact have been a problem with the associate underreporting his time in certain instances, the bottom line is that Attorney Winkel's fee application more than doubled the amount of time his firm had actually recorded on the matter and Attorney Winkel failed to adequately explain the basis for many of the "enhanced" entries. The amount of the increase is simply too large to be believable.

¶ 22. With respect to the issue of the contingent fee agreement, the referee concluded that the OLR failed to prove by clear, satisfactory and convincing evidence that Attorney Winkel violated SCR 20:1.5(c) by failing to obtain a written contingent fee agreement. Although no signed written agreement could be located after the matter was concluded, Attorney Winkel's firm always handled social security appeals on a contingency basis and Attorney Winkel told the associate to handle the J.T. social security matter in that way. The associate subsequently told Attorney Winkel that he had entered into a contingency agreement with J.T. and B.T. and indicated on his time slips that certain entries were for a social security matter, which the billing personnel in the firm always handled as a contingency arrangement. Moreover, the fee application submitted to the SSA that was signed by J.T. referred to a 25 percent contingency agreement with expenses to be reimbursed by the client. The SSA ultimately accepted the fee petition with the contingent fee arrangement. The referee concluded that given this evidence, the OLR had failed to prove under the required standard of clear, satisfactory and convincing proof that Attorney Winkel had failed to obtain a written contingency agreement.

¶ 23. We find that the referee's factual findings on this issue are not clearly erroneous. Although Attorney Winkel, as the sole owner of the firm, should have ensured that a copy of a signed contingent fee agreement was maintained in the firm's file, we agree with the referee's legal conclusion that the OLR failed to prove a violation of SCR 20:1.5(c) by clear, satisfactory and convincing evidence in this case.

¶ 24. Having concluded that Attorney Winkel violated SCR 20:8.4(c), we address the appropriate discipline to be imposed. As sought by the OLR, the referee recommended that Attorney Winkel be given a public reprimand. Attorney Winkel's conduct did involve misrepresentation as to fees, which was designed to inure to his financial benefit. The violation of the duty of candor also occurred in connection with a fee petition to a federal agency. Moreover, the referee concluded that Attorney Winkel had not shown appropriate remorse for the wrongdoing.

¶ 25. On the contrary side, the referee believed that the potential for rehabilitation supported the issuance of a public reprimand rather than a suspension. The referee also noted that the associate's failure to record his time accurately and his exit from Attorney Winkel's firm were partially responsible for the problems with the fee application. While those facts do not excuse Attorney Winkel's more than doubling of his firm's charges, they do explain to some degree why Attorney Winkel thought he needed to reconstruct his firm's time in preparing the fee application and do lend support to the issuance of a public reprimand rather than a suspension.

¶ 26. Having considered the nature of Attorney Winkel's misconduct, the need to impress upon him the seriousness of the misconduct and the need to protect the public, the courts and the legal system from such conduct by Attorney Winkel or other attorneys, we agree that a public reprimand is appropriate discipline for Attorney Winkel's misconduct in this case.

¶ 27. In addition to the issuance of a public reprimand, the referee also recommended that the court order Attorney Winkel to pay restitution to J.T. Ultimately, the SSA awarded Attorney Winkel $4000 in fees. Had Attorney Winkel submitted the amount of fees undisputedly earned by his firm (using the contemporaneous time entries and the prevailing hourly rates at the end of the representation), the referee concluded that Attorney Winkel’s firm would have been entitled to a fee of $3066 out of J.T.'s recovery. Consequently, the referee concluded that restitution in the amount of the difference between those two figures, $934, would be appropriate. We agree that Attorney Winkel should pay restitution to J.T. in the amount of $934.

¶ 28. Finally, the referee recommends that Attorney Winkel be ordered to pay the costs of the disciplinary proceeding, which were $9007.45, as of July 11, 2005. We agree that Attorney Winkel should pay the costs of the proceeding.

¶ 29. IT IS ORDERED that Attorney David J. Winkel is publicly reprimanded for his professional misconduct.

¶ 30. IT IS FURTHER ORDERED that within 30 days of the date of this order, Attorney David J. Winkel shall pay restitution to J.T. in the amount of $934.

¶ 31. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney David J. Winkel pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the 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 David J. Winkel to practice law in Wisconsin shall be suspended until further order of the court.

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

       SCR 20:1.5(c) provides in part that
      [a] contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to he deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.

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

       J.T. did not testify at the hearing.

       Following the initial award of back benefits, Attorney Winkel successfully petitioned the SSA for a modification of the award based on a different beginning date. Attorney Winkel then sought $1039.50 for the fees he earned on this "phase two" of the appeal. The SSA awarded Attorney Winkel a fee of only $100, "giving consideration to the limited services provided by the attorney in prompting a reopening and revision." The referee concluded that, although the SSA drastically reduced the requested fee, there was no misrepresentation involving this "phase two" fee request.

       SCR 22.16(5) states that "[t]he office of lawyer regulation has the burden of demonstrating by clear, satisfactory and convincing evidence that the respondent has engaged in misconduct."


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

      No. 2005AP1017-D.

      Decided December 13, 2005.

    2005 WI 164
    (Also reported in 706 N.W.2d 818.)
   PER CURIAM.

¶ 1. We review the report and recommendation of referee Russell L. Hanson that Attorney Seth E Hartigan be publicly reprimanded following Attorney Hartigan's default in response to the complaint filed by the Office of Lawyer Regulation (OLR). After our review of the matter, we adopt the referee's findings of fact and conclusions of law, and hold that Attorney Hartigan should be publicly reprimanded and ordered to pay the costs of this proceeding.

¶ 2. Attorney Hartigan was admitted to practice law in Wisconsin in January 1998. His license to practice law was suspended for six months by order dated January 19, 2005 for a variety of professional misconduct, including accepting a laptop computer in payment of a fee and retaining it for his personal use without informing his law firm, fading to protect his client's interests upon termination of a representation, and failing to keep a client reasonably informed as to the status of her parole hearing. See In re Disciplinary Proceedings Against Hartigan, 2005 WI 3, 277 Wis. 2d 341, 690 N.W.2d 831. His license remains suspended, as he has not yet petitioned for reinstatement. See SCR 22.28(3). Attorney Hartigan had not been the subject of disciplinary proceedings prior to the January 2005 suspension.

¶ 3. The present proceeding arises out of a complaint filed by the OLR on April 19, 2005 alleging six counts of professional misconduct. The OLR attempted on multiple occasions to have the complaint personally served on Attorney Hartigan, but all service attempts were unsuccessful. Service was accomplished on May 27, 2005 by the OLR sending, via certified mail, an authenticated copy of the complaint and order to answer to Attorney Hartigan at the most recent address he had furnished to the State Bar of Wisconsin. See SCR 22.13(1).

¶ 4. When Attorney Hartigan failed to respond to the OLR's complaint, the OLR moved for the entry of a default judgment. The referee held a telephonic hearing on July 18, 2005 and attempted unsuccessfully to contact Attorney Hartigan at the last phone number he had provided to the Wisconsin State Bar. Ultimately, the referee found Attorney Hartigan to be in default.

¶ 5. The referee accepted the allegations of the complaint as his findings of fact, and concluded that they established that Attorney Hartigan had committed professional misconduct as set forth in the six counts of the complaint. As requested by the OLR, the referee recommended that Attorney Hartigan be publicly reprimanded for his misconduct and ordered to pay the costs of the present proceeding.

¶ 6. Attorney Hartigan has not filed an appeal. The matter is therefore submitted to the court for its review pursuant to SCR 22.17(2). The referee's findings of fact are to be affirmed unless they are clearly erroneous. See In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). The referee's conclusions of law, however, are subject to de novo review. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718.

¶ 7. In summary, Attorney Hartigan's misconduct in the present case involved his representation of three clients: T.H., K.S. and M.B.

¶ 8. From 2001 through December 1, 2003, the State Public Defender's Office (SPD) certified Attorney Hartigan to represent clients at revocation hearings in front of the Division of Hearings and Appeals (the Division). One of the individuals that Attorney Harti-gan was appointed to represent was T.H. Attorney Hartigan was supposed to represent her at a parole revocation hearing on October 9, 2002. Attorney Har-tigan failed to communicate with T.H. at any time prior to the revocation hearing and failed to appear at the October 9, 2002 hearing. Ultimately the hearing was rescheduled but Attorney Hartigan failed to notify T.H. of the rescheduling.

¶ 9. The SPD also appointed Attorney Hartigan to represent K.S. at a probation revocation hearing scheduled for September 29, 2003. Pursuant to K.S.'s request, Attorney Hartigan attempted to reschedule the hearing but the administrative law judge (ALJ) refused his request. Attorney Hartigan then failed to appear at the September 29, 2003 hearing and failed to notify either K.S. or the ALJ that he would not be present. On September 29, 2003, David Schwartz, the Division's administrator, sent a letter to Attorney Har-tigan admonishing him for failing to appear or to notify the Division that he would not be appearing. K.S.'s revocation hearing was rescheduled for two different dates in October 2003 but Attorney Hartigan failed to appear each time.

¶ 10. When the ALJ finally was able to speak with Attorney Hartigan concerning his failure to appear, Attorney Hartigan denied that K.S. was his client or that he had knowledge of the rescheduled hearings. Attorney Hartigan also told the ALJ that since he had not been recertified by the SPD, he could no longer represent K.S. This was a false statement as Attorney Hartigan's certification had been extended by the SPD until December 1, 2003. Attorney Hartigan had not informed K.S. that he was withdrawing as K.S.'s counsel.

¶ 11. When the SPD subsequently appointed new counsel for K.S. pursuant to his request, Attorney Hartigan failed to transfer K.S.'s file to his new attorney. Attorney Hartigan's failure to withdraw properly caused K.S. to use up his one request to the SPD for a new attorney. Attorney Hartigan's pattern of conduct caused the Division to file a grievance against him with the OLR.

¶ 12. The OLR attempted to contact Attorney Hartigan in late March 2004 but was not immediately successful. On April 5, 2004, Attorney Hartigan sent an email to an OLR investigator indicating that he was now available to meet. Attorney Hartigan, however, failed to appear at the scheduled time. When the OLR subsequently served Attorney Hartigan with a Notice of Investigative Interview, Attorney Hartigan did finally appear but produced only a single letter relevant to the investigation. Although he promised to produce other documents, including a letter showing the transfer of KS.'s file to successor counsel, Attorney Hartigan failed to do so.

¶ 13. Attorney Hartigan committed similar misconduct in his representation of M.B. M.B. retained Attorney Hartigan in connection with a criminal matter. Subsequently, Attorney Hartigan was terminated from his associate position with his law firm. Attorney Hartigan then appeared at M.B.'s trial on September 17, 2003. He requested an adjournment on the grounds that he was waiting for M.B., who was in custody, to sign a letter transferring the file from Hartigan's former firm to Attorney Hartigan. The trial court ultimately rescheduled the trial for December 3, 2003. Subsequently, pursuant to M.B.'s request, Hartigan's former firm did transfer M.B.'s file to Attorney Harti-gan. Despite receiving the file, Attorney Hartigan did not appear at the December 3, 2003 trial and did not notify either his client or the court that he would not be appearing. Although the court left multiple messages for Attorney Hartigan informing him that the trial had been adjourned until December 16, 2003, Attorney Hartigan did not appear on that date. Attorney Harti-gan did not file a motion to withdraw from his representation of M.B. M.B. subsequently stated that he received a letter from Attorney Hartigan stating that Attorney Hartigan had not appeared at the scheduled court dates because he needed additional money from M.B. to continue the representation.

¶ 14. Based upon the above findings of fact, the referee concluded that Attorney Hartigan had engaged in professional misconduct as alleged in each of the six counts of the OLR's complaint. With respect to the representation of T.H., the referee determined that Attorney Hartigan's failure to communicate with T.H. constituted a failure to keep the client reasonably informed about the status of a matter, contrary to SCR 20:1.4(a).

¶ 15. The referee also found four violations in connection with the K.S. representation and the OLR's investigation of the same. The referee concluded that Attorney Hartigan's failure to appear at K.S.'s hearings represented a failure to act with reasonable diligence, in violation of SCR 20:1.3. The referee further determined that Attorney Hartigan had violated SCR 20:1.4(a) by failing to communicate with K.S. concerning the status of his revocation hearing and Attorney Hartigan's alleged inability to continue the representation. Attorney Hartigan also violated the requirement of SCR 20:1.16(d) to protect his client's interest upon termination of the representation by failing to inform the client that he could no longer represent him and by failing to transfer the client's file to successor counsel. The referee further concluded that Attorney Hartigan's failure to respond to the OLR requests for information and documents and his failure to appear for a scheduled interview with the district committee's investigator violated SCR 22.04(1).

¶ 16. Finally with respect to M.B., the referee concluded that Attorney Hartigan's failure to notify M.B., the court and opposing counsel of his intent not to appear at trial and his failure to file a formal motion to withdraw constituted a failure to protect the client's interests upon termination of a representation in violation of SCR 20:1.16(d).

¶ 17. Based on these findings of fact and conclusions of law, which we adopt, we accept the referee's recommendation that Attorney Hartigan be publicly reprimanded for his professional misconduct. From both this proceeding and the prior proceeding, we note a disturbing pattern by Attorney Hartigan of failing to represent his clients diligently and to conduct himself as an officer of the court. As noted above, Attorney Hartigan's license remains suspended for his previous misconduct. The present misconduct will also be taken into account in the event that Attorney Hartigan petitions for reinstatement of his license to practice law. Finally, in addition to the public reprimand, we also agree with the referee's recommendation that Attorney Hartigan should pay the costs associated with this disciplinary proceeding, totaling $613.28 as of August 12, 2005.

¶ 18. IT IS ORDERED that Attorney Seth B. Hartigan is publicly reprimanded for his professional misconduct.

¶ 19. IT IS FURTHER ORDERED that, within 60 days of the date of this order, Attorney Seth E Hartigan pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the 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 Seth E Hartigan to practice law in Wisconsin shall be suspended until further order of the court.

¶ 20. LOUIS B. BUTLER, JR., J., took no part.

       SCR 22.28(3) provides that "[t]he license of an attorney that is revoked or suspended for misconduct for six months or more shall be reinstated pursuant to the procedure set forth in SCR 22.29 to 22.33 and only by order of the supreme court."

       SCR 22.13(1) provides in pertinent part: "If, with reasonable diligence, the respondent cannot be served under section 801.11(l)(a) or (b) of the statutes, 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."

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

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

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

       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 22.04(1) provides that "[t]he director may refer a matter to a district committee for assistance in the investigation. A respondent has the duty to cooperate specified in SCR 21.15(4) and 22.03(2) in respect to the district committee. The committee may subpoena and compel the production of documents specified in SCR 22.03(8) and 22.42."


text:
    In The Matter of Disciplinary Proceedings Against John A. Chavez, Attorney at Law. Office of Lawyer Regulation, Complainant, v. John A. Chavez, Respondent.
    Supreme Court

      No. 2005AP2110-D.

      Decided December 14, 2005.

    2005 WI 167
    (Also reported in 706 N.W.2d 822.)
   The Court entered the following order on this date:

On October 7, 2005, Attorney John A. Chavez and the Office of Lawyer Regulation (OLR) entered into a stipulation pursuant to SCR 22.34(1) requesting that this court enter an order indefinitely suspending Attorney Chavez's license to practice law in Wisconsin, without an assessment of costs, due to medical incapacity. Attorney Chavez was admitted to practice in 1990. His license to practice law was temporarily suspended on November 17, 2004 for failure to cooperate with an OLR grievance investigation. It remains suspended. The stipulation contains evidence of Attorney Chavez's medical incapacity. It states that Attorney Chavez is aware that he has the right to seek the advice of counsel in this matter and has voluntarily chosen not to do so. The stipulation further states that Attorney Chavez entered into the stipulation freely, voluntarily and knowingly and that the stipulation was not the result of a plea bargain but instead represents Attorney Chavez's admission of a medical incapacity which has impeded his ability to perform his profession to acceptable professional standards;

IT IS ORDERED that this court accepts the parties' stipulation and, effective the date of this order and until further order of the court, Attorney John A. Chavez's license to practice law in Wisconsin is indefinitely suspended, without the imposition of costs. Attorney Chavez shall comply with the requirements of SCR 22.26 relating to license suspension if he has not already done so.


author: 1. PER CURIAM.

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

      No. 2003AP2422-D.

      Submitted on briefs September 30, 2005.

      Decided December 20, 2005.

    2005 WI 168
    (Also reported in 707 N.W.2d 132.)

      For the respondent-appellant there were briefs by Michael J. Ganzer, Joseph T. Ganzer and Hodan, Dosier & Ganzer, S.C., Milwaukee.

      For the complainant-respondent there was a brief by Robert G. Krohn and Roethe Krohn Pope LLP, Edg-erton.
   1. PER CURIAM.

¶ Attorney Carlos Gamino appeals from a referee's report and recommendation concluding that Attorney Gamino engaged in professional misconduct in two client matters and misrepresented his conduct to a trial court and to Office of Lawyer Regulation (OLR) investigators, thereby violating the rules of professional conduct.

¶ 2. The referee recommended the court suspend Attorney Gamino's license to practice law for a period of six months. We adopt the referee's findings of fact and conclusions of law, and agree that a six-month suspension is appropriate discipline for Attorney Gamino's misconduct in this matter. We further conclude that Attorney Gamino should pay the costs of this disciplinary proceeding of $19,437.35 as of October 3, 2005.

¶ 3. Attorney Gamino was admitted to the practice of law in Wisconsin in 1997. He has no prior disciplinary history.

¶ 4. The OLR filed a complaint in this matter on September 17, 2003, alleging four counts of misconduct stemming from allegations that Attorney Gamino engaged in inappropriate sexual relations with two clients and that he misrepresented his activities with one of these clients in open court and to the OLR investigators, all in violation of the Supreme Court Rules of Professional Conduct. Specifically, the complaint alleged:

COUNT ONE: By representing [C.M.] while having sexual relations with [C.M.'s] mother, respondent provided representation that may have been materially limited by his own interests and failed to obtain a written waiver of the conflict from his client, in violation of SCR 20:1.7(b).
COUNT TWO: By testifying inaccurately, under oath, that he had not met [M.C-M.] on December 12, 2000, and by testifying he never had sexual relations with [M.C-M.], respondent knowingly made a false statement of fact to a tribunal, in violation of SCR 20:3.3(a)(1).
COUNT THREE: By asserting to staff and District investigators that he had not met with [M.C-M.] on December 12, 2000, by asserting that he had never had sexual relations with [M.C-M.], and by stating that an imposter must have made a call to the juvenile authorities on hehalf of [C.M.] on December 12, 2000, respondent, in the course of an investigation, made misrepresentations, in violation of SCR 22.03(6) and SCR 20:8.4(f).
COUNT FOUR: By engaging in sexual relations with [J.M.] when she was his client and when a consensual sexual relationship did not exist prior to the commencement of the lawyer-client relationship, respondent entered into a prohibited transaction creating a conflict of interest, in violation of SCR 20:1.8(k)(2).

¶ 5. Attorney Gamino filed an answer on November 14, 2003, and the matter was submitted to referee Kim Peterson. Attorney Gamino vigorously challenged the OLR's allegations; he moved to dismiss the complaint on the grounds that the charges filed against him were both vague and stale. The motion was denied and the matter proceeded to an evidentiary hearing in May 2004. Following submission of post-hearing briefs, the referee issued a report and recommendation dated October 25, 2004. Attorney Gamino now appeals.

¶ 6. Attorney Gamino contends that a number of the referee's findings of fact are clearly erroneous. He contends, further, that his due process rights have been violated by this proceeding.

¶ 7. The standard of review before this court is that the referee's findings of fact are affirmed unless clearly erroneous, but conclusions of law are reviewed on a de novo basis. See In re Disciplinary Proceedings Against Kalal, 2002 WI 45, 252 Wis. 2d 261, 643 N.W.2d 466. The referee's credibility determinations are intertwined with his or her findings of fact. See In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 498 N.W.2d 380 (1993).

¶ 8. We first review the referee's findings of fact made with respect to Attorney Gamino's representation of C.M., a minor, in a children in need of protection or services (CHIPS) proceeding, and his subsequent representation of the child's mother, M.C-M.

¶ 9. We recite the history giving rise to the grievance filed against Attorney Gamino because it is relevant to his arguments on appeal. M.C-M. initially retained Attorney Gamino in December 2000 to represent her minor son, C.M., in a pending juvenile proceeding. As will be discussed, the parties vigorously dispute whether Attorney Gamino was retained on December 12 or on December 13. They vigorously dispute what, if anything, occurred between Attorney Gamino and M.C-M. on December 12. It is undisputed that M.C-M. subsequently retained Attorney Gamino on her own behalf to help her secure a temporary restraining order against a male acquaintance. She also retained Attorney Gamino's legal services in February 2001 after she was taken into custody in Waukesha County and her probation status was threatened. Attorney Gamino later represented M.C-M. on charges of theft, forgery, and contributing to the delinquency of a minor.

¶ 10. On October 23, 2001, M.C-M. was sentenced to ten years in prison related to earlier criminal convictions. Attorney Gamino represented M.C-M. for post-sentencing purposes. In late 2001 he sought an appointment of a public defender ón M.C-M.'s behalf on the grounds that she was indigent.

¶ 11. On December 5, 2001, M.C-M. wrote a letter to the circuit court in her postconviction sentencing proceeding in which she requested a new lawyer, claiming that Attorney Gamino was unethical. In this letter she alleged that she and Attorney Gamino had engaged in sexual relations beginning December 12, 2000, the night she retained him to represent her son. She claimed that she was entitled to postconviction relief and new counsel on the grounds that her lawyer had engaged in sexual relations with her during the course of the legal representation.

¶ 12. At the hearing before the circuit court on M.C-M.'s postconviction sentencing matter, Attorney Gamino denied having sexual relations with M.C-M. He asserted that he did not meet her until December 13, 2000.

¶ 13. The circuit court denied M.C-M.'s motion. Although the circuit court declined to make specific findings on the alleged sexual misconduct, the circuit court commented quite unfavorably on M.C-M.'s credibility.

¶ 14. In February 2002 a grievance was filed against Attorney Gamino alleging that he had engaged in an inappropriate sexual relationship with M.C-M. Gamino was notified of this grievance in April 2002. He wholly denied the accusations and the matter proceeded to an evidentiary hearing.

¶ 15. The evidence elicited at the hearing included documentary evidence, the testimony of the two grievants, Attorney Gamino's testimony, and the testimony of various other witnesses for both Attorney Gamino and the OLR.

¶ 16. M.C-M. testified that she first met Attorney Gamino on the morning of December 12, 2000, at a bagel shop to discuss her son's case. She claims they flirted during this meeting and that they arranged to meet later that day at a mall to further discuss the case. She testified that at her request, Attorney Gamino arranged for her son's release from the juvenile detention center where he was detained so the boy could spend the day and night with her.

¶ 17. M.C-M. testified that she and her son met Attorney Gamino at a mall later that afternoon and that Attorney Gamino was physically affectionate with her during this time. She claimed that she told Attorney Gamino she was concerned about her living situation because her boyfriend was sometimes violent. She testified that Attorney Gamino made arrangements for M.C-M. and her son to stay at a hotel that night.

¶ 18. M.C-M. testified that while she was home collecting additional clothing for the evening, the juvenile detention center telephoned her inquiring when her son would return. She apparently informed them that she had met with her lawyer and that C.M. would return the following day.

¶ 19. M.C-M. testified that she, her son and a couple of his friends arrived at the hotel around midnight and that Attorney Gamino was waiting for her. She testified that two hotel rooms were obtained and that she and Attorney Gamino engaged in sexual relations in one of the hotel rooms that evening.

¶ 20. M.C-M. testified that the sexual relationship continued after she retained Attorney Gamino to assist her in obtaining a restraining order and she described several specific incidents of sexual activity between them, including one that allegedly occurred in the conference room of the jail where M.C-M. was incarcerated.

¶ 21. Attorney Gamino vigorously challenged M.C-M.'s testimony and her credibility. He correctly notes that M.C-M. was not specific as to the dates many of the alleged incidents occurred, and he contends this undermines her credibility and makes it exceedingly difficult to defend against her allegations.

¶ 22. Attorney Gamino asserts that he did not meet M.C-M. until December 13 and he wholly denies having any sexual relationship with her, at any time. He denies accompanying her at the mall on December 12, and he denies staying at the hotel with her that night. He maintains that he spent December 12 at a "Market America" meeting with his brother and that he and his brother socialized together that night, returning home about 2:30 a.m.

¶ 23. Attorney Gamino's brother corroborated Gamino's testimony regarding their whereabouts on December 12, 2000.

¶ 24. An employee of the jail testified that M.CM.'s claim of engaging in sexual activity in the jail conference room sounded "exceptionally difficult."

¶ 25. This was a challenging matter for the referee to evaluate. As a "he said/she said" situation with no third-party witnesses to the alleged sexual activity, resolution of the question turned almost completely on the referee's determinations of various witnesses' credibility. It is undisputed — and indeed the referee acknowledged — that there were substantial reasons to question M.C-M.'s credibility, not least of which was the fact that the initial allegations were made in the context of M.C-M.'s effort to obtain new counsel and rehearing on an unsatisfactory criminal sentencing matter.

¶ 26. The referee acknowledged the issues undermining M.C-M.'s credibility, including her lengthy criminal history. Indeed, the referee stated: "Taken alone, [M.C-M.'s] testimony may be hard to believe."

¶ 27. However, the referee was persuaded by other evidence adduced at the hearing, including the testimony of M.C-M.'s son, C.M. The referee stated that she found C.M. to be very credible and was impressed with his testimony.

¶ 28. At the time of the hearing C.M. was 18 years old, living with a foster family, and finishing high school. He corroborated his mother's testimony about Attorney Gamino and M.C-M.'s conduct at the mall on December 12, 2000. He testified that Attorney Gamino and his mother slept together in a separate hotel room, apart from him that night. He testified that he was upset by his mother's conduct and that he went to his mother's hotel room at approximately 2 or 3 a.m. He testified that he found Attorney Gamino present in the hotel room and saw an open condom wrapper on the nightstand. He testified that he became upset and yelled at his mother. He testified that Attorney Gamino left the room and that M.C-M. then called Attorney Gamino's cell phone telling him to return to the hotel room. The referee noted that cellular telephone records confirm that a telephone call was made to Attorney Gamino's cell phone at 2:25 a.m.

¶ 29. Documentary evidence in the record indicated that two separate hotel rooms were obtained for M.C-M. and her son, on two separate floors, on the night of December 12, 2000.

¶ 30. As noted, Attorney Gamino denied that a meeting with M.C-M. at a bagel shop ever occurred. However, an investigator with the Public Defender's Office testified that he saw Attorney Gamino with a woman at the bagel shop one morning in December and that their behavior was "verging on flirtatious." While he could not remember the specific date of the incident he testified that he noticed the incident and the individuals' behavior, because he knew Attorney Gamino's fiancée.

¶ 31. An attorney and former judge who shared offices with Attorney Gamino also testified at the evidentiary hearing. He testified that he saw Attorney Gamino and M.C-M. together on several occasions after December 12 and that he was "concerned" about their relationship and behavior, in part because he knew Attorney Gamino's fiancée. He stated that he spoke with Attorney Gamino on one occasion, informing him that he felt Attorney Gamino's relationship with M.C-M. was "inappropriate."

¶ 32. A social worker for Waukesha County testified that on December 20, 2000, M.C-M. confided that she was having an affair with her lawyer, Gamino. The social worker noted this disclosure in her file.

¶ 33. The referee found that various telephone records corroborated M.C-M.'s version of events. Although Attorney Gamino initially denied making any calls to the juvenile detention center on C.M.'s behalf on December 12, and claims he was not retained to represent C.M. until December 13, there is record evidence indicating that Attorney Gamino did telephone the juvenile detention center around 10:40 p.m. on December 12 to confirm the boy would spend the night with his mother.

¶ 34. Telephone records also reflect that Attorney Gamino called the home where M.C-M. was staying on the morning of December 12, 2000. Attorney Gamino's telephone records reflect numerous calls to M.C-M.'s telephone number between 10:22 p.m. and 12:30 a.m. Attorney Gamino also placed a telephone call to the home where M.C-M. was staying at 10:43 p.m. on December 12.

¶ 35. With respect to Attorney Gamino's alibi and his brother's testimony, the referee noted that "Market America" meetings are busy meetings with hundreds of attendees that are conducted each Tuesday. She noted that there was no other evidence that Attorney Gamino attended a meeting on December 12. The referee also noted that Attorney Gamino did not advance this alibi during the course of the investigation, but for the first time at the hearing.

¶ 36. Ultimately, after acknowledging a number of discrepancies among the witnesses' testimony, the referee found that the witness testimony and documentary evidence supported M.C-M.'s version of events. Specifically, the referee found, inter alia, that M.C-M. retained Attorney Gamino to represent her minor son on December 12, 2000, and that Attorney Gamino and M.C-M. engaged in a sexual relationship on December 12 and 13, 2000. The referee found further that no written waiver was obtained relating to this conflict of interest. The referee also found that Attorney Gamino represented to the trial court in M.C-M.'s postconviction sentencing matter that he never had sexual relations with M.C-M., and that Attorney Gamino represented to OLR staff and a district investigator that he never had sexual relations with M.C-M. The referee specifically found that these latter "representations were not truthful."

¶ 37. We now review the referee's findings of fact made with respect to Attorney Gamino's representation of a client named J.M.

¶ 38. J.M. was charged with driving under the influence, third offense, in January 2001. It is undisputed that she had no connection with Attorney Gamino before she retained him on or about February 2, 2001. J.M. later retained Attorney Gamino to represent her on several successive matters.

¶ 39. J.M. testified that she met Attorney Gamino at a bar in Wauwatosa in February 2001 to discuss legal representation. She described a "mutual attraction." She testified that they met again a couple weeks later at a Champs restaurant. She testified that both drank alcohol at this meeting and that she became intoxicated. She testified that later that evening, they engaged in sexual activity in Attorney Gamino's vehicle. J.M. testified that the sexual relationship continued for a period of time; she described six specific incidents of sexual activity. However, she admitted that she was usually intoxicated during these episodes and that she did not remember all the details.

¶ 40. J.M. testified that in March 2002 while in drug and alcohol treatment following a period of incarceration, she told her social worker that she had had a sexual relationship with her lawyer, Gamino. The social worker memorialized this conversation in a written memorandum dated March 5, 2002. J.M. filed a grievance against Attorney Gamino in March 2002.

¶ 41. After the OLR commenced its investigation, J.M. apparently proposed settling her claims against Attorney Gamino for $5000. In July 2002 she wrote Attorney Gamino and demanded $25,000 to settle her claims. Attorney Gamino advised the OLR of this communication. Attorney Gamino did not pay any sums to J.M. to "settle" the matter.

¶ 42. Attorney Gamino flatly denies engaging in sexual activity with J.M. He introduced evidence, namely the testimony of his wife and his physician, disputing J.M.'s characterization of certain of his physical characteristics.

¶ 43. The referee deemed the discrepancies in testimony "minimally relevant." She found, inter alia, that an attorney-client relationship existed between J.M. and Attorney Gamino from February 2001 through January 2002. She found further that they also had a sexual relationship as described by J.M. and as alleged in the OLR complaint filed against Attorney Gamino throughout most of this time. She found that this relationship did not predate Attorney Gamino's representation of J.M.

¶ 44. On appeal, Attorney Gamino contends that the referee's factual findings with respect to both the M.C-M. and J.M. matters are clearly erroneous. He reiterates various discrepancies among the testimony and evidence presented at the hearing. He describes the two complainants as women with "sketchy memories" and "ulterior motives." He characterizes J.M. as "an admitted addict who tried to extort money from Mr. Gamino with a false allegation of sexual assault." His depiction of J.M. is strikingly at odds with the referee's opinion. The referee specifically noted that she found J.M.'s testimony "particularly compelling" and that J.M. appeared "honest and straightforward." The referee was persuaded that J.M. had no motivation to lie and concluded that she was not motivated by anger.

¶ 45. We accept the referee's findings of fact. They were, for the most part, based on the referee's assessment of the credibility of the witnesses, and on review we will not interfere with that determination. The referee obviously believed the testimony of the clients and the other witnesses above that of Attorney Gamino. See, e.g., In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, 269 Wis. 2d 43, 11, 675 N.W.2d 747 (declining to conclude that the referee's findings were clearly erroneous where they rely heavily on the credibility of the witnesses and the referee was best situated to judge the credibility of the witnesses); In re Disciplinary Proceedings Against Lucareli, 2000 WI55, 235 Wis. 2d 557, 32, 611 N.W.2d 754 (noting that a reviewing court defers to the finder of fact on matters decided on the basis of witness credibility absent an erroneous exercise of discretion or an error of law). With respect to those findings not based on witness credibility we also conclude that the referee's findings were not clearly erroneous and we accept them. See In re Disciplinary Proceedings Against Camacho, 126 Wis. 2d 104, 209, 375 N.W.2d 204 (1985).

¶ 46. Attorney Gamino also challenges the disciplinary procedure on several related grounds, contending that he was deprived of his right to due process in this proceeding. He contends that the accusations are so stale as to preclude disciplinary prosecution. He challenges the lack of specificity with respect to when specific incidents of sexual misconduct allegedly occurred, asserting that this compromises his ability to defend against the charges. He contends that this lack of specificity rose to a denial of his due process rights.

¶ 47. As we understand it, the crux of Attorney Gamino's defense is that he "should only be required to defend himself on charges with specific dates that he has a reasonable chance of knowing, otherwise he is called to account for all his actions over a two year period — an impossible task." With respect to specific dates alleged — namely December 12 and 13, 2000— Gamino suggests that these dates are too old or "stale" to permit him to prepare a reasonable defense. He emphasizes that the OLR's complaint was filed nearly three years after this alleged incident.

¶ 48. We are not persuaded. This court has held that a lawyer's constitutional right to due process in a disciplinary proceeding involves only the right to prior notice of the charges, the right to prepare and defend against the charges, and the right to a full hearing on the charges. See State v. Hersh, 73 Wis. 2d 390, 243 N.W.2d 178 (1976); see also, In re Disciplinary Proceedings Against Eisenberg, 117 Wis. 2d 332, 344 N.W.2d 169 (1984); and In re Complaint Against Seraphim, 97 Wis. 2d 485, 294 N.W.2d 485 (1980). This proceeding certainly satisfied these requirements.

¶ 49. The incidents involving M.C-M. allegedly occurred from December 2000 through 2001. Attorney Gamino knew of M.C-M.'s claims and was called to respond to them in open court as early as December 2001 at her postconviction sentencing matter. He was formally notified that a grievance had been filed against him on April 15, 2002. He subsequently had a full evidentiary hearing before a referee after the OLR's complaint was filed. It is true that J.M., in particular, was unable to pinpoint the dates of alleged sexual contact with much accuracy. Her testimony included statements like: "springtime, you know, probably April, May, something like that maybe." However, J.M. conceded in the hearing that her memory was affected by her use of alcohol and cocaine during the time she claimed sexual involvement with Attorney Gamino, and the referee was able to consider these weaknesses in her testimony in evaluating the OLR's allegations.

¶ 50. Moreover, three of the four counts in the complaint pertain to Attorney Gamino's alleged activities with M.C-M. on a specific date, December 12, 2000. These allegations are certainly not vague and we decline to hold that a grievance filed approximately two years after the attorney misconduct allegedly occurred is too stale, as a matter of law, to permit prosecution.

¶ 51. Having accepted the referee's findings of fact in this matter and rejected Attorney Gamino's due process claim, we conclude that the referee's findings clearly support the conclusions of law articulated in the report and recommendation.

¶ 52. The referee concluded that by undertaking representation of C.M., a minor, then engaging in a sexual relationship with C.M.'s mother, Attorney Gamino violated SCR 20:1.7(b), which 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.

It is undisputed that no waiver was obtained in the C.M. matter. We agree that by entering into a sexual relationship with M.C-M. while having been retained to represent her son and without obtaining the requisite written waiver, Attorney Gamino violated SCR 20:1.7(b).

¶ 53. The referee concluded that Attorney Gamino made a false statement of fact to a tribunal in violation of SCR 20:3.3(a)(1) when he testified under oath that he had not undertaken representation of M.C-M.'s son on December 12, and when he denied having any sexual relationship with M.C-M. We agree that the referee's findings of fact support this legal conclusion.

¶ 54. The referee further concluded that Attorney Gamino violated SCR 20:8.4(f) and SCR 22.03(6) when he denied to the OLR staff and to a district investigator that he met M.C-M. on December 12 and also denied having any sexual relationship with her. Again, we conclude that the referee's findings support this conclusion of law.

¶ 55. Finally, we agree with the referee's conclusion that Attorney Gamino violated SCR 20:1.8(k)(2) when he commenced and engaged in a sexual relationship with his client, J.M.

¶ 56. We turn to the appropriate sanction for Attorney Gamino's misconduct. The referee found that on two separate occasions Attorney Gamino entered into a sexual relationship with a female client in a vulnerable personal situation very shortly after he was retained by them. As the referee observed, one of these clients was dealing with drug and alcohol dependency and facing the loss of her children, home, possessions and numerous pending criminal matters. She was desperate and vulnerable and Attorney Gamino should have been aware of this fact. This disturbing behavior, combined with the finding of his misrepresentations about the nature of the relationship evidences a troubling pattern that we agree warrants significant discipline. The referee recommended a six-month suspension of Attorney Gamino's license to practice law in Wisconsin. We agree that the recommended sanction is not inconsistent with other cases involving similar misconduct. See e.g., In re Disciplinary Proceedings Against Kraemer, 200 Wis. 2d 547, 547 N.W.2d 186 (1996) (imposing six month suspension on lawyer who engaged in sexual relations with client and also engaged in deception). Finally, we direct Attorney Gamino to pay the costs of this disciplinary proceeding.

¶ 57. IT IS ORDERED that the license of Carlos Gamino to practice law in Wisconsin is suspended for a period of six months, effective January 24, 2006.

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

¶ 59. IT IS FURTHER ORDERED that within 60 days of the date of this order Carlos Gamino pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of the inability to pay those costs within that time, the license of Attorney Carlos Gamino to practice law in Wisconsin shall remain suspended until further order of the court.

       For example, M.C-M. described one incident of alleged sexual activity as occurring "around Christmas."

       Attorney Gamino initially explained the telephone call made to the juvenile detention center on behalf of C.M. on December 12, 2000 must have been made by "an imposter."

       J.M. testified that Attorney Gamino supplied the alcohol she drank when some of the incidents allegedly occurred.

       Following the submission of briefs in this matter Attorney Gamino filed a motion to supplement the record with evidence that J.M. was not — as she testified — alcohol free for two years prior to the disciplinary hearing in May 2004. As such, he contends she committed perjury. The information provided to the court indicates that in June 2004, J.M. was involved in a serious automobile accident while driving drunk. This information led to further investigation and submission of an affidavit from a former boyfriend of J.M. who stated that J.M. was drinking alcohol between August 2003 and September 2003. The affidavit stated that the affiant and J.M. had a "falling out" in September 2003 and that he had not seen J.M. since. Attorney Gamino's motion to supplement the record with this evidence was granted; his request for a new hearing based on this evidence was denied.

       Although the information provided to the court in the motion to supplement the record gives us pause, we conclude that it does not warrant a rehearing. The referee was well aware of J.M.'s alcoholism. We are not persuaded that evidence that J.M. failed to maintain sobriety would necessarily alter the referee's conclusions about the existence of a sexual relationship between J.M. and Attorney Gamino.

       Attorney Gamino specifically challenges the referee's detailed descriptions and analysis of the number and timing of various telephone calls made to and from Attorney Gamino's cellular telephone. We agree that this analysis was, in some instances, overly speculative. However, it is apparent that these findings or the inferences drawn therefrom, are not necessary to support the referee's conclusions of law; even if these findings are discounted, the ultimate conclusions of law have adequate support from the referee's other factual findings.

       SCR 20:3.3(a)(l) provides that a lawyer shall not knowingly "make a false statement of fact or law to a tribunal."

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

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

       SCR 20:1.8(k)(2) provides that a "lawyer shall not have sexual relations with a current client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced."