source: Caselaw Access Project

author: PER CURIAM. DAVID T. PROSSER, J.

license: Public Domain

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

      No. 02-3314-D.

      Oral argument April 29, 2004.

    Decided July 27, 2004.

    2004 WI 116
    (Also reported in 684 N.W.2d 121.)

      For the respondent-appellant there were briefs by Mark J. Steichen and Boardman, Suhr, Curry & Field LLP, Madison, and oral argument by Mark J. Steichen.

    For the complainant-respondent there was a brief and oral argument by Julie M. Falk, Madison.
   PER CURIAM.

¶ 1. Attorney Michael G. Trewin 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 suspended for a period of five months.

¶ 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 Trewin's misconduct warrants the suspension of his license to practice law for a period of five months. We also agree with the referee that all costs of the proceeding should be assessed against Attorney Trewin.

¶ 3. Attorney Trewin was admitted to practice law in Wisconsin in 1985 and practices in New London. He has not previously been the subject of a disciplinary action. He focuses his practice on bankruptcy and debt reorganization and specializes in farm bankruptcies. He is also the sole owner of a corporation called Midwest Comics, Inc.

¶ 4. In December 2002 the Office of Lawyer Regulation (OLR) filed a complaint alleging that Attorney Trewin engaged in professional misconduct with respect to his representation of a number of clients in bankruptcy or debt reorganization proceedings. Konrad T. Tuchscherer was appointed referee. In September 2003 the referee granted partial summary judgment in favor of Attorney Trewin, dismissing portions of the misconduct counts alleged by the OLR. A two-day hearing was held before the referee in November 2003 on the remaining counts. The referee's report and recommendation was issued on December 16, 2003.

¶ 5. The majority of the counts of misconduct alleged by the OLR involve Attorney Trewin's representation of D.S., a farmer who retained Attorney Trewin in December 1997 to represent him concerning financial difficulties, including the possible repossession of his farm equipment and a possible farm foreclosure. In January 1998 Attorney Trewin filed a "quick-file" Chapter 12 bankruptcy action on behalf of D.S. to forestall the repossession of the farm equipment and to permit D.S. to reorganize. In April 1998 Attorney Trewin filed a reorganization plan for D.S. Soon thereafter Attorney Trewin began negotiating with D.S.'s creditors, which included John Deere and Associated Bank North. Attorney Trewin negotiated settlements with two judgment creditors which required D.S. to pay $12,500 to satisfy the judgments.

¶ 6. In the months following the filing of the reorganization plan, D.S. was unable to meet the payments required, and the bankruptcy was converted into a Chapter 7 proceeding which allowed D.S. to discharge his unsecured debts and attempt to renegotiate his secured debt with his secured creditors. D.S. did not have the money to pay the $400 fee to convert the bankruptcy from a Chapter 12 to a Chapter 7, nor did he have the funds to pay off the judgment creditors. Attorney Trewin recommended that D.S. try to borrow the money from family, friends, or financial institutions. When D.S. was unable to do so Attorney Trewin agreed to lend D.S. $12,900, $400 to convert the bankruptcy to a Chapter 7 and $12,500 to pay off the two judgments. Attorney Trewin did not request or obtain any security for the loan. The loan itself was made through Midwest Comics, Inc. Attorney Trewin admitted he did not advise D.S. about the possible adverse results of an attorney loaning money to a client, nor did D.S. sign a written conflict waiver prior to signing the $12,900 promissory note to Midwest Comics. Attorney Trewin also did not obtain written consent from D.S. to continue to represent him in the bankruptcy action, or in continued negotiations with creditors after he became D.S.'s creditor himself. Attorney Trewin said he did tell D.S. to seek independent counsel and said he explained to D.S. the potential for conflicts of interest to arise in the event of defaults on loans or contracts and the consequences that Attorney Trewin would be unable to represent D.S. in the event of such a conflict.

¶ 7. On or about September 21, 1998, D.S. returned the signed promissory note to Attorney Trewin along with the first month's payment on the loan. Attorney Trewin had disbursed the $400 fee to convert the bankruptcy action to a Chapter 7 in August 1998 but did not disburse the funds to pay off the two judgments until he received the signed promissory note from D.S. The September 21, 1998, payment and all subsequent payments made by D.S. were deposited into either Attorney Trewin's personal or law office account.

¶ 8. While D.S.'s bankruptcy action was still pending, Attorney Trewin submitted a proposal to Associated Bank whereby D.S. would reaffirm his debt to Associated Bank in lieu of Associated Bank exercising its right to foreclose on D.S.'s property secured by various mortgages and security agreements. D.S. received a discharge in bankruptcy on December 3, 1998. Discussions continued between Associated Bank and Attorney Trewin regarding reaffirmation of the Associated Bank's secured debt so D.S. could stay in business on the farm. Associated Bank's attorney sent Attorney Trewin a proposal in early January 1999 containing a number of conditions, including requiring D.S. to bring the interest on his loan current and keep his payments current throughout the term of the agreement. D.S. did not have the means to meet the conditions set by Associated Bank.

¶ 9. In February 1999 Attorney Trewin sent D.S. a bill for legal services rendered since December 1997. The bill totaled $7899.58. Among the disbursements itemized was $400 to convert the bankruptcy to a Chapter 7. Neither D.S. nor Attorney Trewin noticed that this sum was already reflected in the $12,900 promissory note. After the inception of the OLR's investigation, Attorney Trewin corrected the $400 overcharge on a revised loan accounting.

¶ 10. While negotiations with Associated Bank continued, D.S. discussed with Attorney Trewin the need for more dairy cows to increase the farm's cash flow. D.S. also discussed this matter with his son, K.S. Although D.S. was not well and was suffering from cancer at the time, K.S. agreed that purchasing additional cattle was a good way to increase cash flow. When D.S. was unable to obtain financing to buy cattle from other sources, Attorney Trewin agreed to lend him money through Midwest Comics, Inc., at 12 percent interest. Attorney Trewin prepared two promissory notes, a security agreement, a UCC financing statement, a mortgage on the farm, and an assignment of dairy income and sent them to D.S. Attorney Trewin said although he advised D.S. orally that he should consult another attorney for advice on the transaction, he did not obtain a separate written conflict waiver from D.S.

¶ 11. D.S. signed two promissory notes on May 17, 1999. The first, in the amount of $130,000, reflected disbursements for additional cattle, points and document preparation fees and the payment of Attorney Trewin's legal fees from the February 1999 bill. The second note, in the amount of $29,326.52, represented an operating loan. D.S. acquired additional dairy cows with the loan proceeds. The second promissory note was labeled a "line of credit." As part of the line of credit Attorney Trewin provided several of his credit card numbers to Harmony Co-op in Colby, Wisconsin, and allowed D.S. to purchase feed and other supplies on Attorney Trewin's credit. Attorney Trewin then made direct payments to the Co-op on D.S.'s behalf.

¶ 12. Charges incurred on behalf of D.S. were added to a loan spreadsheet by Attorney Trewin. Attorney Trewin charged D.S. interest on the date D.S. made purchases at the Co-op rather than the due date on Attorney Trewin's credit card bill. Attorney Trewin did not obtain D.S.'s written consent as to when interest would begin to accrue on the charges D.S. made at the Co-op. Attorney Trewin's accounting to D.S. as to the balances owed and charges made contained a number of errors. After the OLR initiated its investigation Attorney Trewin acknowledged the errors and made corrections.

¶ 13. There was no public record of Attorney Trewin's security interest in Midwest Comics at the time of the May 1999 loans to D.S. because Midwest Comics had been administratively dissolved in June 1996 as the result of a failure to file an annual report with the Wisconsin Department of Financial Institutions. Attorney Trewin did not file and record the financing statement which evidenced Midwest Comic's interest in the cattle or the mortgage on D.S.'s real estate.

¶ 14. In May 1999 Associated Bank's attorney sent Attorney Trewin a proposed workout agreement providing that its loan would be due in full on April 20, 2000. Associated Bank's attorney requested that Attorney Trewin provide information on the purchase money financing of D.S.'s new dairy cows so that Associated Bank could distinguish the cows in which it had an interest from the later acquired cows. Attorney Trewin initially did not tell the bank that he was behind the purchase money financing for the new cows. D.S. never returned the loan workout agreement and in July 1999 Associated Bank commenced a foreclosure action against D.S. in Wood county.

¶ 15. At the time the foreclosure action was commenced, Midwest Comics, Inc. was not named a defendant since it had not filed or recorded evidence of the loans to D.S. Attorney Trewin understood that Associated Bank's security interests were higher in priority than those of Midwest Comics. After the foreclosure action was filed, Attorney Trewin assigned Midwest Comics' promissory notes and security interest to his brother-in-law, Daniel Schommer. Under the terms of the assignment Schommer had no real ownership interest and all interest earnings reverted to Midwest Comics. As expressed in a memo to Schommer, Attorney Trewin's interest in entering into the assignment was to avoid any possibility that he might he called to testify in the foreclosure action and therefore be prevented from representing D.S. under the rules of professional conduct dealing with lawyers as witnesses. At the conclusion of the foreclosure action the loan was reassigned by Schommer to Midwest Comics.

¶ 16. When Associated Bank discussed possible settlement with Attorney Trewin, Attorney Trewin informed the bank that Schommer held the purchase money interest in the cattle. Attorney Trewin did not tell the bank he was a shareholder of Midwest Comics or that he had a security interest in D.S.'s real estate and personal property, including the cattle. Attorney Trewin proposed that D.S. stipulate to a default judgment with the redemption period for the recovery of the animals and farm equipment being tied to the 12-month redemption period for the real estate. That proposal allowed D.S. to maintain an income from the farm during the redemption period.

¶ 17. On October 19, 1999, D.S. wrote Attorney Trewin a $5000 check payable to the Michael G. Trewin Trust Account. The money was earmarked for payment to John Deere. Although the check was made payable to the trust account and constituted funds belonging to D.S., it was deposited into Attorney Trewin's business checking account. Attorney Trewin made a payment to John Deere on D.S.'s behalf on December 31, 1999, and credited D.S. with the $5000 payment.

¶ 18. On October 29, 1999, Attorney Trewin sent a letter to Associated Bank's attorney with a list of the new cattle purchased by D.S. The letter identified Midwest Comics as the lender. Attorney Trewin signed Schommer's name on the stipulation identifying the purchase money cows. This information was incorporated into a default judgment entered by the court providing that Associated Bank would forego the recovery of its collateral until November 1, 2000, subject to a number of conditions, including that D.S. remain current on his payments. As an inducement to get Associated Bank to agree to the terms of the default judgment, Attorney Trewin permitted Associated Bank to take a security interest in the new cows ahead of Midwest Comics' purchase money security interest.

¶ 19. In November 1999 D.S. asked Attorney Trewin to reduce the amount of his milk assignment for that month by $1150 to allow him to cure a default to Associated Bank. Attorney Trewin agreed and D.S. asked to pick up a check from Attorney Trewin in that amount payable to Associated Bank on November 22, 1999. Attorney Trewin entered the transaction on a loan spreadsheet and charged interest as of that date but D.S. did not pick up the check. Attorney Trewin delivered the check to Associated Bank on December 2, 1999. D.S. defaulted on his loan payments to Associated Bank a number of times in the summer of 2000 and Attorney Trewin forwarded checks and an insurance binder to Associated Bank to cure the defaults.

¶ 20. In May 2000 D.S. requested a new line of credit from Attorney Trewin to plant crops. Attorney Trewin informed D.S. that any new loans would require a refinancing of the old notes and that the interest rate would be 14 percent, with the payment amount remaining the same. On May 17, 2000, Midwest Comics loaned D.S. $9800 to pay John Deere, less a $2900 payment from D.S. Attorney Trewin did not obtain a signed written consent from D.S. prior to increasing the interest rate and adding $6900 to D.S.'s indebtedness. According to a loan spreadsheet, on May 17, 2000, Attorney Trewin added $11,521.88 to D.S.'s indebtedness to Midwest Comics and immediately began charging D.S. 14 percent interest on that amount although no funds were disbursed by Attorney Trewin on D.S.'s behalf on or before May 17.

¶ 21. In June 2000 D.S. entered into a new promissory note with Midwest Comics in the amount .of $164,636.35 at 14 percent interest and also entered into a new dairy assignment. The note was also secured by the security agreement and mortgage entered into in May 1999. The new loan incorporated all existing indebtedness under the earlier note and the $11,521.88 that still had not been disbursed. Attorney Trewin did not obtain a written conflict waiver from D.S. regarding the June 2000 promissory note. D.S. continued charging purchases on Attorney Trewin's credit card which exceeded the $11,521.88. Attorney Trewin prepared a revised loan spreadsheet showing the excess charges. Although Attorney Trewin knew the dates D.S. had incurred the extra charges and the dates Trewin had paid the credit card bills, D.S. was charged 14 percent interest on the amount of $15,244.38 beginning May 17, 2000. As part of the OLR investigation Attorney Trewin corrected the actual disbursement dates on a revised loan' accounting to reflect the dates Attorney Trewin had actually paid the credit card bills.

¶ 22. In late 2000 D.S. was falling more in debt and it was obvious he could not secure financing to pay off Associated Bank. Attorney Trewin devised a proposal whereby he would borrow money from F&M Bank of Antigo and lend that money to D.S. to pay off Associated Bank. Attorney Trewin said he recommended that D.S. consult independent counsel and reminded him there was a potential for a conflict of interest to arise if D.S. defaulted on the loan. On October 6, 2000, Attorney Trewin prepared a promissory note for $482,651.59, incorporating the prior D.S. indebtedness plus the additional loan to pay off Associated Bank and other creditors as well as points and fees for the transaction. Attorney Trewin also prepared a mortgage and UCC financing statement. D.S. signed the loan and security documents. Attorney Trewin did not ask D.S. to sign a separate written conflict waiver.

¶ 23. At the same time Attorney Trewin loaned the additional money to D.S., Attorney Trewin borrowed $325,000 from F&M Bank and assigned his interest in D.S.'s loan to F&M as collateral. Prior to entering into the transaction, D.S. requested that $7840 be paid to John Deere. Attorney Trewin prepared a closing statement showing such a payment to John Deere, but the payment was not made.

¶ 24. D.S. died on December 25, 2000. D.S.'s estate made payments on the loan to Attorney Trewin until April 2001. In October 2001 the estate filed an action against Attorney Trewin and Midwest Comics alleging a number of counts, including allegations of malpractice predicated on alleged violations of the rules of professional responsibility.

¶ 25. On October 5, 2001, F&M Bank filed a foreclosure action against Attorney Trewin and D.S. arising out of the estate's default on the loan to Attorney Trewin. The estate's lawsuit against Attorney Trewin and the foreclosure action were consolidated. In November 2002 the circuit court granted Attorney Trewin's motion for summary judgment and dismissed the estate's claims against Attorney Trewin and ordered judgment in his favor for principal and interest in the amount set forth in his accounting. The court also declared that Attorney Trewin was entitled to a judgment of foreclosure. The estate appealed and the court of appeals affirmed. Most of the property owned by D.S. has been sold and Attorney Trewin has been paid part of his judgment.

¶ 26. Attorney Trewin was delinquent in filing both Midwest Comics' 1999 tax return and his personal 1999 tax return, both of which were filed in May 2001. He filed his 2000 income tax return in June 2003. He initially obtained an extension to file the returns but failed to obtain additional extensions. His tax returns showed a combined refund of $3523 due him for state and federal taxes for 2000.

¶ 27. The OLR's complaint also alleged that Attorney Trewin engaged in misconduct with respect to his representation of various other clients. Attorney Trewin represented A.C. in a bankruptcy filing and debt restructuring. A.C. had been represented for many years by Attorney Raymond S. Huber, who is now a Waupaca county circuit judge. During Attorney Trewin's representation of A.C., Attorney Trewin and Schommer purchased A.C.'s business, Menominee Gas, which distributed propane on the Menominee reservation. Attorney Trewin did not obtain written consent from A.C. prior to purchasing the business, and A.C. was not told that Schommer was Attorney Trewin's brother-in-law.

¶ 28. Attorney Trewin and Schommer formed Menominee Gas, Inc. It is unclear whether Huber represented A.C. in the sale of the assets of the sole proprietorship to the new corporation. The new corporation hired A.C. to manage the business and paid him a salary. A.C. was treated as a one-third owner of the new company but evidence of any ownership was avoided because his creditors could have sought to attach it. Attorney Trewin later filed a bankruptcy action for A.C. Attorney Trewin did not explain to A.C. any potential conflicts of interest in representing him in the bankruptcy after Attorney Trewin had purchased Menominee Gas assets, and Attorney Trewin failed to obtain a written consent or conflict waiver from A.C. prior to representing him in the bankruptcy action. The referee found that A.C.'s testimony was less than credible.

¶ 29. Mr. and Mrs. S. owned a restaurant in Marinette. They met with Attorney Trewin and told him they wanted to avoid bankruptcy. Attorney Trewin proposed to negotiate with their creditors and take as a fee one-third of any reduction he could obtain in their indebtedness. Attorney Trewin agreed to lend Mr. and Mrs. S. the funds to pay the reduced balance at 12 percent interest. He advised them verbally to seek independent counsel but a written conflict waiver was never prepared or signed.

¶ 30. Attorney Trewin prepared a promissory note for $80,000, two real estate mortgages, and a security agreement giving him an interest in all of Mr. and Mrs. S.'s business equipment, inventory, and fixtures. Mr. and Mrs. S. eventually sold their business and paid off their indebtedness to Attorney Trewin. Mrs. S. testified at the hearing before the referee that Attorney Trewin helped them when no one else would and that he was very fair in his dealings with them.

¶ 31. Attorney Trewin represented Mr. and Mrs. M. in 1998 and loaned them $127,000. Again, Attorney Trewin gave Mr. and Mrs. M. an opportunity to seek the advice of independent counsel but failed to obtain a written conflict waiver from them.

¶ 32. Attorney Trewin loaned Mr. and Mrs. E, bankruptcy clients, $1500 in 1999. He did not obtain a written consent or conflict waiver from them. Attorney Trewin advised Mr. and Mrs. E that they should not reaffirm the secured debt on their house. Attorney Trewin entered into a transaction with Mr. and Mrs. E to purchase their property and lease it back to them after their bankruptcy was completed. Attorney Trewin did not obtain a written consent or conflict waiver from Mr. and Mrs. E

¶ 33. Attorney Trewin represented R.VS. in a bankruptcy action. After his bankruptcy discharge, the mortgage lender on the home held a foreclosure sale. The bank's judgment was for more than the value of the house. Attorney Trewin advised R.VS. he could let the house be sold at foreclosure, anticipating that the bank would buy the property, and then attempt to buy the house back from the bank at a lower amount. When R.VS. could not find anyone else to buy the house or loan him money to do so, Attorney Trewin agreed to buy the home and lease it back to R.VS. R.VS. testified that the transaction saved him roughly $30,000 and gave him lower monthly payments than he would otherwise have had, and he said Attorney Trewin had been fair with him throughout their dealings. Attorney Trewin did not obtain written consent or a conflict waiver from R.VS.

¶ 34. Attorney Trewin represented R.L. regarding financial problems in a potential bankruptcy filing. No bankruptcy petition was ever filed. Attorney Trewin prepared a warranty deed that transferred ownership of R.L.'s land to Schommer and also prepared a lease/option agreement that called for R.L. to pay rent of $1100 per month to Schommer with the option of repurchasing the land. Attorney Trewin did not obtain a written conflict waiver from R.L. prior to drafting the real estate documents transferring the property from R.L. to Schommer. R.L. subsequently filed an action against Attorney Trewin and Schommer alleging he had been swindled. The referee found that R.L.'s testimony was less than credible.

¶ 35. Attorney Trewin admitted that by failing to timely file his own income tax returns he violated a supreme court decision regulating the conduct of lawyers in State v. Roggensack, 19 Wis. 2d 38, 45, 119 N.W.2d 412 (1963), which held that an attorney's intentional violation of the tax laws constitutes an ethics violation, contrary to SCR 20:8.4(f). Attorney Trewin also admits that by depositing the October 19, 1999, check from D.S. into his business account rather than into his trust account, he violated SCR 20:1.15(a). Attorney Trewin takes issue with the referee's conclusions that he violated any other rules of professional conduct.

¶ 36. The referee found that Attorney Trewin violated SCR 20:1.8(a) in two respects. First, the referee found a violation of the rule by virtue of Attorney Trewin's entering into lender-debtor or business relationships with at least seven clients without securing written, informed consent waivers. While Attorney Trewin admits he did not provide disclosure in writing or obtain written consent from his clients before entering into the loan agreements, he asserts this was not required. Attorney Trewin notes that SCR 20:1.8(a)(3) requires that "the client consents in writing thereto." He argues that the word "thereto" must refer to something earlier in the rule and the only logical conclusion is that it must refer to subsection (1) regarding consent to enter into the transaction itself and the terms on which the lawyer acquires the interest. Attorney Trewin thus argues that it is sufficient for the client to sign the loan documents and there is no need for a written waiver of any potential conflict of interest.

. ¶ 37. The OLR argues that the written client consent required by SCR 20:1.8(a)(3) cannot be satisfied solely by the client signing the underlying loan documents, which terms are already required to be in writing under SCR 20:1.8(a)(1). The OLR contends the rule also requires the client to consent in writing to the conflict of interest in entering into a business transaction with his or her attorney. The OLR says to interpret the rule in any other manner flies in the face of the rule's purpose, which is to ensure that the client is aware of and acknowledges all the risks and conflicts present in entering into a business transaction with an attorney with whom they have a fiduciary relationship. We agree with the OLR's interpretation.

¶ 38. It is a cardinal rule that when interpreting a statute a court must "attempt to give effect to every word, so as not to render any portion of the statute superfluous." Osborn v. Board of Regents, 2002 WI 83, ¶ 22, 254 Wis. 2d 266, 647 N.W.2d 158. Supreme Court Rule 20:1.8(a)(l) requires the terms of a business transaction, i.e., the loan documents, between lawyer and client to be in writing. Attorney Trewin's argument that having the client sign the loan documents is all that is required would render the remainder of SCR 20:1.8 superfluous. Supreme Court Rulé 20:1.8(a)(2) requires that before entering into a business transaction with his or her attorney the client be given a reasonable opportunity to seek advice of independent counsel. Supreme Court Rule 20:1.8(a)(3) requires that "the client consents in writing thereto." The only interpretation that would give effect to all three subsections1 of SCR 20:1.8(a) is that the client must give separate consent to the transaction with the lawyer, waiving the conflict of interest, and the client must indicate in writing he or she has been given a reasonable opportunity to consult with independent counsel.

¶ 39. Two prior cases in which attorneys were found to have violated SCR 20:1.8(a) (3) indicate that the rule clearly contemplates two separate writings. See In re Disciplinary Proceedings Against Steiner, 225 Wis. 2d 422, 429, 591 N.W.2d 857 (1999). See also In re Disciplinary Proceedings Against Tritschler, 169 Wis. 2d 298, 305, 485 NW.2d 261 (1992) Further support for our interpretation of the rule is found in the comment to SCR 20:1.7, the general conflict of interest rule which provides that a lawyer shall not represent a client if the representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents in writing after consultation. The committee comment to this rule states, "In conflict of interest situations where the lawyer may continue to represent the client or clients if each client consents, the client's consent must be in writing, . . . ." We agree with the OLR and the referee that a separate written conflict waiver was required prior to Attorney Trewin entering into the business transactions with his clients. Attorney Trewin admits he did not obtain written consent from the clients. Thus, he violated SCR 20:1.8(a).

¶ 40. The referee also found that Attorney Trewin violated SCR 20:1.8(a) by virtue of errors made on his loan accountings to D.S. The referee made the following conclusion of law:

162. The frequency and the magnitude of the loan and business transactions in which Respondent participated with his clients were such that they appeared to be a common occurrence to Respondent's practice making it look as though he was more of a banker than a lawyer. Unlike a bank, however, Respondent's mathematical accuracy when dealing with his clients in these transactions resulted in many over-charges for interest and, in some instances, billings for disbursements that either were never made or, albeit, were made at dates well after interest was shown to have accrued. None of the typical disclosure protocol a bank would follow was used by Trewin. This type of activity was unfair and unreasonable to each and every client where such activity occurred and was in violation of SCR 20:1.8(a).

¶ 41. Attorney Trewin asserts that he readily corrected the few accounting errors that were identified and that none of the errors amounted to anything more than ordinary bookkeeping mistakes. He also asserts that charging interest on credit card purchases from the dates D.S. made the purchases rather than the date Attorney Trewin paid his credit card bill was not unfair or unreasonable. He further contends that since neither D.S. nor his estate objected to using the date credit was obtained by D.S. in order to compute interest, the OLR should be barred by issue preclusion from objecting to this course of dealing.

¶ 42. The OLR responds to the issue preclusion argument by noting that the issue of the propriety of Attorney Trewin's loan accountings was not litigated in the circuit court and the question of whether Attorney Trewin engaged in professional misconduct by virtue of the numerous mathematical inaccuracies in his ac-countings to D.S. and the estate was also not litigated. We agree with the OLR's analysis and conclude that issue preclusion does not apply here. We also agree with the referee's conclusion that Attorney Trewin violated SCR 20:1.8(a) by making numerous errors on loan accountings, apparently none of which were either identified or corrected by Attorney Trewin until after the OLR commenced its investigation. Even accepting Attorney Trewin's argument that the errors were not intentional and were simply the result of sloppy bookkeeping, they were nevertheless significant enough to constitute a violation of SCR 20:1.8(a).

¶ 43. The referee also found that by failing to include a commentary on A.C.'s one-third ownership interest in the gas company in A.C.'s bankruptcy schedules, Attorney Trewin violated SCR 20:8.4(c). In addition, the referee made findings of fact that Attorney Trewin violated SCR 20:8.4(c) by assigning various loan interests to his brother-in-law, Schommer. For example, Finding of Fact 40 said that Attorney Trewin's assignment of Midwest Comics' interest in the D.S. notes to Schommer was "purely a ruse." Although the referee's conclusions of law do not specifically mention the assignments to Schommer, this court adopts the referee's findings of fact unless clearly erroneous and it reviews conclusions of law de novo. The record supports the conclusion that the assignments to Schommer violated SCR 20:8.4(c).

¶ 44. The referee also found that by entering into the lender-debtor relationship with his clients without advising them of the possible adverse consequences, Attorney Trewin violated SCR 20:1.7(b). Attorney Trewin argues the OLR never offered any evidence of the likelihood of the alleged possible adverse effects, and he says the referee ignored evidence that such hypothetical risks were unlikely to occur. Attorney Trewin points to testimony from some of his clients that he helped them when no one else would and that he was fair in his dealings with them. The OLR argues that the creditor-debtor relationship created a relationship between Attorney Trewin and his clients in which they had differing and competing interests.

¶ 45. We agree with the referee's conclusion that Attorney Trewin's failure to advise his clients in writing of the possible adverse effects of entering into business relationships with them violated SCR 20:1.7(b). The rule does not require any particular degree of likelihood that adverse effects will accrue by the attorney entering into business relationships with clients. Supreme Court Rule 20:1.7(b) provides that a lawyer shall not represent a client if the representation may be materially adverse unless: "(1) the lawyer reasonably believes the representation will not be adversely affected" and "(2) the client consents in writing after consultation." If the lawyer believes there will be an actual adverse effect on the representation, the lawyer may not represent the client, even if the client would be willing to agree to the representation. It is only where the lawyer believes the representation will not be adversely affected and the client consents in writing that the representation can continue. By failing to obtain the clients' written consent before entering into the business transactions, Attorney Trewin violated the rule.

¶ 46. This court will adopt the referee's findings of fact unless they are clearly erroneous. In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 498 N.W.2d 380 (1993). The court does not grant deference to the referee's conclusions of law and reviews them on a de novo basis. In re Disciplinary Proceedings Against Norlin, 104 Wis. 2d 117, 310 N.W.2d 789 (1981). The court may also impose whatever sanction it sees fits regardless of the referee's recommendation. In re Disciplinary Proceedings Against Widule, 2003 WI 34, 261 Wis. 2d 45, 660 N.W.2d 686. Since the referee's findings of fact have not been shown to be clearly erroneous, we adopt them. We also agree with the referee's conclusions of law.

¶ 47. The referee recommended a five-month suspension of Attorney Trewin's license to practice law in Wisconsin and also recommended that he pay the full costs of the proceeding. We agree with both of these recommendations. Attorney Trewin entered into loan transactions with clients who were experiencing serious financial problems and thus were in a vulnerable position. The fact that some of the clients thought Attorney Trewin did them a favor by loaning them money does not exonerate him from the rule violations. We agree with the referee that there was sufficient evidence to support the conclusion that Attorney Trewin violated SCR 20:1.8(a), SCR 20:8.4(c), and SCR 20:1.7(b). In addition, Attorney Trewin has admitted to violating SCR 20:1.15(a) and SCR 20:8.4(f). We agree with the referee that a five-month suspension of Attorney Trewin's license to practice law in Wisconsin is an appropriate sanction for these violations.

¶ 48. The OLR is seeking costs in excess of $25,000. Attorney Trewin has filed an objection to the OLR's bill of costs in which he argues that the assessment of costs is discretionary. He asserts that the costs requested by the OLR that are attributable to undisputed claims of misconduct amount to only $132. He says even if the court were to find against him on any claims disputed on appeal, the reasonable costs attributable to those claims would add little as most of the underlying facts were undisputed and the vast majority of the costs incurred by the OLR relate either to claims that were dismissed and are not challenged on appeal by the OLR or were unreasonably and unnecessarily incurred in excessive and redundant discovery of undisputed facts.

¶ 49. This court has previously rejected objections to a full assessment of costs based on an apportionment of the number of misconduct allegations established. See e.g., In re Disciplinary Proceedings Against Pangman, 216 Wis. 2d 440, 460, 574 N.W.2d 232 (1998). We follow that past practice here and conclude that Attorney Trewin should be required to pay the full costs and fees associated with this proceeding. While the facts of the case may have been substantially undisputed, the ultimate question of whether the facts translated into one or more violations of the rules of professional conduct was hotly contested. We find that the costs sought by the OLR were reasonably incurred in the prosecution of this case.

¶ 50. IT IS ORDERED that the license of Michael G. Trewin to practice law in Wisconsin is suspended for a period of five months, effective August 31, 2004, and until further order of the court.

¶ 51. IT IS FURTHER ORDERED that within 60 days of the date of this order, Michael G. Trewin 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 his inability to pay the costs within that time, the license of Michael G. Trewin to practice law in Wisconsin shall remain suspended until further order of the court.

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

All work on this per curiam was completed on or before June 30, 2004. Justice Diane S. Sykes resigned on July 4, 2004.

DAVID T. PROSSER, J.

¶ 53. (concurring in part; dissenting in part). This case raises several procedural issues that require comment.

¶ 54. On December 12, 2002, the Office of Lawyer Regulation (OLR) filed a 12-count, 48-page complaint against the respondent, Michael Trewin. The complaint asked that the respondent "be found in violation of the Supreme Court Rules as alleged," and "that the Court impose discipline commensurate with the severity of Trewin's misconduct, along with such other and further relief as may be just and equitable, including an award of costs." The costs to the respondent, not including his own legal fees, now exceed $25,000.

¶ 55. The 12 counts in the complaint alleged violation of the following rules:

¶ 56. The referee concluded that the respondent had violated numerous rules, but the referee's report did not neatly track the 12 counts seriatim, so that a reader could keep score of the counts that OLR proved and the counts that it did not prove. An accurate "score" would help the court evaluate the appropriate costs.

¶ 57. What is evident from this case is the following: First, the complaint against Trewin at the outset was so open-ended that he had no idea what discipline OLR was seeking, or what the potential consequences would be if he simply conceded every count. This uncertainty about likely or potential consequences provided a strong incentive for the respondent to resist the discipline.

¶'58. Second, some of the counts charged contained multiple alleged violations against multiple clients. Consequently, unless the respondent was willing to acknowledge wrongdoing to every part of every count, he had no choice but to resist some of the counts, particularly when he did not know what the consequences would be if he did not resist.

¶ 59. Third, OLR contends that Trewin should pay the entire cost of the proceeding. This means he is asked to pay the costs to prosecute him on counts on which he successfully defended himself.

¶ 60. To illustrate, OLR charged Trewin in Counts 1, 6, 7, and 11 with alleged violations of Rule 20:1.8(a). Each count alleged that Trewin entered into a business transaction or business transactions (a) the terms of which were unfair and unreasonable to the client; and (b) without obtaining the client's written approval. On each such count, the referee dismissed the allegation that the terms of the allegation were unfair and unreasonable as to the client. In retrospect, these counts were overcharged by OLR but the cost of getting them partially dismissed is to be borne entirely by Attorney Trewin. Count 9 was not proven but the cost of prosecuting that failed count is to be borne by Attorney Trewin. Allegations involving transactions with two named individuals were dismissed. Attorney Trewin is to pay for those unsuccessful allegations.

¶ 61. In Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, 275 Wis. 2d 1, 683 N.W.2d 58, this court adopted the "lodestar" method for determining reasonable attorney fees under fee-shifting statutes. The court needs to ask itself whether the cost assessment in some disciplinary proceedings is consistent with the lodestar methodology, or whether it is driven by nothing more than OLR’s legitimate need for funding and our coldblooded political determination that additional costs should not be assessed to the members of the state bar. Both of these factors are reasonable, but not if they completely override the element of fair play to a respondent attorney.

¶ 62. I concur in the discipline imposed by the court but would adjust some of the costs to reflect the respondent's success in defending himself against some of OLR's charges.

       SCR 20:8.4(1) provides: "It is professional misconduct for a lawyer to: (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       SCR 20:1.15(a) provides:
      (a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall be maintained in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The trust account shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay or avoid imposition of account service charges, may be deposited in such an account. Unless the client otherwise directs in writing, securities in bearer form shall be kept by the attorney in a safe deposit box in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The safe deposit box shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. Other property of a client or third person shall be identified as such and appropriately safeguarded. If a lawyer also licensed in another state is entrusted with funds or property in connection with an out-of-state representation, this provision shall not supersede the trust account rules of the other state.

       SCR 20:1.8(a) provides:
      (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
      (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;
      (2) the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
      (3) the client consents in writing thereto.

       Attorney Steiner loaned money to a client. In upholding the referee's findings that Steiner violated SCR 20:1.8(a), this court said:
      That transfer constituted a loan from Attorney Steiner to [his client], made at his request, hut it was not evidenced by a promissory note, and the terms of the transaction had not been provided to [the client] in writing. Also, there was no evidence suggesting that [the client] had been advised to seek the advice of independent counsel in the transaction, and Attorney Steiner did not obtain his written consent to the transaction. The loan was satisfied, and [the client] did not complain about it. The referee concluded, as the parties had stipulated, that by lending money to his client without any written terms or other documentation, without advising his client to obtain the advice of independent counsel, and without obtaining his client's written consent, Attorney Steiner violated SCR 20:1.8(a).

        In re Disciplinary Proceedings Against Steiner, 225 Wis. 2d 422, 429, 591 N.W.2d 857 (1999). (Emphasis added.)

       In agreeing with the referee that the attorney violated SCR 20:1.8(a), this court said: 'When he obtained the loan, Attorney Tritschler did not advise the clients of any actual or potential conflict of interest nor did he obtain their written consent to continue their representation after obtaining the loan." In re Disciplinary Proceeding Against Tritschler, 169 Wis. 2d 298, 305, 485 N.W.2d 261 (1992). (Emphasis added.)

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

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


author: DEININGER, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Antwan B. Manuel, Defendant-Appellant.

    Court of Appeals

      No. 03-0113-CR.

      Submitted on briefs September 8, 2003.

      Decided May 27, 2004.

    2004 WI App 111
    (Also reported in 685 N.W.2d 525.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven D. Phillips, assistant state public defender of Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jennifer E. Nashold, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, EJ., Vergeront and Lundsten, JJ.

       Petition to review granted 9-16-04.

   DEININGER, EJ.

¶ 1. Antwan Manuel appeals a judgment of conviction for attempted first-degree intentional homicide, aggravated battery and several related offenses. He also appeals an order denying his motion for postconviction relief. Manuel claims that: (1) the trial court erroneously exercised its discretion in admitting certain hearsay evidence under the "recent perception" exception, Wis. Stat. § 908.045(2) (2001-02) ; (2) the admission of this evidence violated Manuel's constitutional right of confrontation; and (3) Manuel's trial counsel provided ineffective assistance by failing to impeach the hearsay declarant's credibility by introducing evidence of his prior convictions. We reject each of Manuel's arguments and affirm the appealed judgment and order.

BACKGROUND

¶ 2. Evidence produced at trial revealed the following facts. A man, standing between the sidewalk and curb with a group of other men, flagged down a car as it drove past. He then approached the car and began conversing with the driver through the front, driver's side window. As they talked, a different man walked up to the vehicle, reached around the man standing at the window, and shot the driver in the neck. The driver survived and later identified Derrick Stamps as the man who spoke to him and Manuel as the man who shot him.

¶ 3. The police arrested Stamps two days later at his girlfriend's apartment. At the time of Stamps' arrest, his girlfriend told a detective that Stamps told her on the night of the shooting that "he was with the guy that shot" the driver, and Stamps had then taken her and their son to a hotel for two days. Stamps refused to testify at Manuel's trial, invoking his Fifth Amendment privilege. Manuel sought to prevent Stamps' girlfriend from testifying on the grounds that she lacked personal knowledge of the shooting and that Stamps' statement was inadmissible hearsay. The trial court allowed her to testify, finding that Stamps was unavailable and that his statement to his girlfriend was admissible as a statement of recent perception under Wis. Stat. § 908.045(2).

¶ 4. Stamps' girlfriend, however, testified that she was unable to recall either what Stamps had told her about the shooting or what she told police regarding Stamps' statement to her. The State eventually introduced Stamps' statement to his girlfriend via the testimony of the police detective who questioned her at the time of Stamps' arrest. The detective testified that Stamps' girlfriend told him that Stamps had, within hours after the shooting, told her that while he was talking with the victim through the car window, Manuel "came out of nowhere" and shot the victim.

¶ 5. The jury found Manuel guilty of attempted first-degree intentional homicide and five related offenses. He filed a postconviction motion seeking a new trial, asserting evidentiary error, a confrontation clause violation, and ineffective assistance of counsel. The trial court denied his motion for a new trial, concluding that: (1) Stamps' statement was properly admitted as a statement of recent perception because it described an event observed shortly before Stamps spoke to his girlfriend, it was spontaneous and there was no basis to find Stamps made the statement in bad faith; (2) sufficient indications of the reliability or trustworthiness of Stamps' statement were present to satisfy the confrontation clause; and (3) trial counsel had not been ineffective because the failure to impeach Stamps' statement with evidence of his prior convictions did not prejudice Manuel's defense.

¶ 6. Manuel appeals, making the same claims for relief that he did in his postconviction motion. We include additional facts in the analysis which follows.

ANALYSIS

¶ 7. Manuel claims that the trial court erred in two ways by admitting into evidence Stamps' statement to his girlfriend that Manuel had shot the victim. He first contends that the statement did not meet the requirements for the hearsay exception under Wis. Stat. § 908.045(2) ("Statement of recent perception"), because the record fails to establish that Stamps made the statement in good faith and not in anticipation of litigation. Second, Manuel claims that admission of the statement violated his Sixth Amendment right to be confronted with the witnesses testifying against him.

¶ 8. We begin with the hearsay claim and will not reach the constitutional issue unless we first determine that the challenged out-of-court statement is admissible as either non-hearsay or under a recognized exception. See State v. Jenkins, 168 Wis. 2d 175, 185-86, 483 N.W.2d 262 (Ct. App. 1992). Whether to admit hearsay evidence under an exception is a matter committed to the trial court's sound discretion. State v. Stevens, 171 Wis. 2d 106, 111, 490 N.W.2d 753 (Ct. App. 1992). We will not reverse an evidentiary ruling if the court properly exercised discretion by applying the correct legal standard to the relevant facts of record. State v. Sveum, 220 Wis. 2d 396, 405, 584 N.W.2d 137 (Ct. App. 1998), review denied, 2002 WI 111, 256 Wis. 2d 64, 650 N.W.2d 840 (Wis. Jul. 26, 2002) (No. 01-0230). Furthermore, if we can conclude that the trial court's decision is supported by the record, we will not reverse it even though the court may have given no reason or a wrong reason for its ruling. Jenkins, 168 Wis. 2d at 186.

¶ 9. Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Wis. Stat. § 908.01(3). There is no dispute that Stamps' statement to his girlfriend that he was present and saw Manuel shoot the victim is hearsay. The trial court admitted Stamps' hearsay statement to his girlfriend under the exception for statements of "recent perception," Wis. Stat. § 908.045(2), which applies when a declarant is "unavailable." Section 908.045(2) reads as follows:

(2) STATEMENT OF RECENT PERCEPTION. A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant's recollection was clear.

¶ 10. The recent perception exception is similar to hearsay exceptions for present sense impressions and excited utterances, but it allows for more time between the observation of the event and the statement when a declarant is unavailable and the evidence would otherwise be lost. State v. Weed, 2003 WI 85, ¶ 15, 263 Wis. 2d 434, 666 N.W.2d 485. Given the longer lapse of time allowed between a declarant's perception and his or her description of the event, the exception as adopted in Wisconsin contains limitations "to assure accuracy and trustworthiness." Id. The limitations are:

(1) the statement was not made in response to the instigation of a person engaged in investigating, litigating, or settling a claim and was made in good faith with no contemplation of pending or anticipated litigation in which the declarant would be an interested party; (2) the statement narrated, described, or explained an event or condition recently perceived by the declarant; and (3) the statement was made while the declarants recollection is clear.

Id., ¶ 14.

¶ 11. The trial court gave the following explanation of its decision to admit Stamps' statement:

With respect to ... [Stamps' girlfriend], her testimony in my opinion clearly represents evidence of a recent perception on the part of Mr. Stamps, in that as I understand ... she would be indicating that this occurred sometime shortly thereafter the incident. . . when he had returned to their apartment, and that it formed the basis for his comments about what had occurred and for their behavior thereafter.... I do think it comes in as a statement of recent perception.

Manuel contends the trial court applied the wrong legal standard because it failed to expressly find that Stamps' statement was "made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested." Wis. Stat. § 908.045(2). He argues further that, even if the court's failure to make that finding is not reversible error, the record does not support such a finding. We disagree and conclude that the court did not err in admitting Stamps' statement under § 908.045(2).

¶ 12. The State argued in the trial court that Stamps' statement met the requirement that a statement be "made in good faith [and] not in contemplation of pending or anticipated litigation." Specifically, the State contended that Stamps "was simply trying to tell [his girlfriend] what happened... so that she would have a reason also to get out of the house to go with him to this motel to get away from the police officers." We conclude that the court's comment that Stamps' statement "formed the basis . .. for their behavior thereafter" shows that the court, implicitly if not explicitly, accepted the State's proffered inference that Stamps had given the account of the shooting to his girlfriend in order to explain why he wanted her to flee with him to a hotel to avoid the police. See Hagenkord v. State, 100 Wis. 2d 452, 464, 302 N.W.2d 421 (1981) (upholding discretionary ruling despite the absence of "an express ruling or an articulation of reasons," where record indicates trial court "acquiesced in the explanation of the prosecutor").

¶ 13. Moreover, even if we were to conclude that the trial court did not fully articulate its determination that Stamps made the statement to his girlfriend in good faith and not in contemplation of pending or anticipated litigation, we independently conclude that the record supports this finding. Manuel offers speculation as to several ulterior motives Stamps may have had for saying what he did to his girlfriend. Nothing in the record suggests, however, that Stamps lied to his girlfriend in order, for example, to cover up his own guilt as the shooter or to get back at Manuel for some grudge or rivalry. Stamps made the statement to his girlfriend, who was the mother of his son and presumably someone he trusted and in whom he confided. In addition, the statement implicated a fellow member of a gang to which Stamps belonged, not a member of a rival gang or some other real or perceived enemy of Stamps.

¶ 14. There is also no suggestion in the record that Stamps' girlfriend knew of the shooting or of Stamps' involvement before Stamps told her. Stamps' statement to her was thus spontaneous, as opposed to being in response to a question or accusation. Finally, we note that the victim's testimony at trial, in which he described conversing with Stamps through the car window when Manuel emerged and shot him, largely corroborates the account Stamps gave to his girlfriend. Cf. Stevens, 171 Wis. 2d at 119 (noting that "corroboration is the key to reliability of a statement coming under this exception").

¶ 15. Finally, we note that, immediately after Stamps told his girlfriend about the shooting, they and their infant son fled to a nearby hotel. That fact bolsters the plausibility of the motive advanced by the State, rendering it considerably more plausible than Manuel's speculation that Stamps' intent was to plant a story with his girlfriend that concealed his actual involvement as the shooter in anticipation that she would be contacted by police or even testify in his defense. To be sure, Stamps' flight shows that he believed police would soon be investigating the shooting, and he no doubt further believed that the State would seek to charge someone for it. But these beliefs cannot be enough to make his statement inadmissible under the recent perception exception, as Manuel contends. Adoption of Manuel's position would render Wis. Stat. § 908.045(2) useless in most criminal and tort actions because every injury-producing event could reasonably be said to cause witnesses to anticipate that litigation concerning it may be forthcoming.

¶ 16. In summary, we conclude that the trial court did not erroneously exercise its discretion in admitting Stamps' statement to his girlfriend under Wis. Stat. § 908.045(2). We must therefore consider whether the admission of Stamps' statement to his girlfriend violated Manuel's constitutional right "to be confronted with the witnesses against him." U.S. Const, amend. VI.

¶ 17. A criminal defendant's right to confront the State's witnesses is also guaranteed by article 1, section 7 of the Wisconsin Constitution, which guarantees defendants the right "to meet the witnesses face to face." The rights of a criminal defendant to be confronted with the witnesses against him or her are the same under both constitutions. See Jenkins, 168 Wis. 2d at 185. Thus, Wisconsin courts will generally apply U.S. Supreme Court precedents when interpreting both the state and federal confrontation clauses. See, e.g., Weed, 263 Wis. 2d 434, ¶ 23. Whether the admission of hearsay violates a defendant's confrontation right is a question we decide de novo. Id., ¶ 10.

¶ 18. Until very recently, we would be obliged at this point to assess Manuel's right to be confronted with the State's witnesses under the framework and standards established in Ohio v. Roberts, 448 U.S. 56 (1980). The Wisconsin Supreme Court has explained that Roberts established a two-step analysis:

The United States Supreme Court has established a two-step approach for analyzing the admission of hearsay evidence under the confrontation clause. Roberts, 448 U.S. at 65-66. First, the witness must be "unavailable" for trial. Id. Second, the statement of the unavailable witness must bear some "indicia of reliability." Id. at 65. With respect to the second prong, "[rjeliability is shown 'if the evidence falls within a firmly rooted hearsay exception' or 'upon a showing of particularized guarantees of trustworthiness.'" Roberts, 448 U.S. at 66.

Weed, 263 Wis. 2d 434, ¶ 23 (some citations omitted).

¶ 19. The continuing vitality of the Roberts approach was called into question, however, by the Supreme Court's recent opinion in Crawford v. Washington, 124 S. Ct. 1354 (2004). Justice Scalia, writing for the majority, first examined the historical roots of the confrontation clause and concluded that the history of the clause "supports two inferences" about its meaning. Id. at 1363. The first is that "even if the Sixth amendment is not solely concerned with testimonial hearsay, that is its primary object." Id. at 1365 (emphasis added). The second is "that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. (emphasis added).

¶ 20. After its historical analysis, the Crawford majority devotes several pages of its opinion to critiquing the reasoning and results in federal and state appellate opinions applying the Roberts tests. The Court concluded that the "unpardonable vice of the Roberts test... is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude." Id. at-1371. The Court then expressly discarded the "Roberts test" for determining the admissibility of "testimonial" hearsay statements. The new rule announced for the admission of testimonial hearsay statements is this: the testimonial statement of a person absent from trial may only be admitted in conformity with the confrontation clause if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant regarding the statement. Id. at 1374.

¶ 21. Even though the Court distinguished between testimonial and non-testimonial hearsay evidence, and applied the newly announced rule only to testimonial statements, it left "for another day any effort to spell out a comprehensive definition of 'testimonial.' " Id. The Court did say that, "at a minimum," testimonial hearsay includes "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and.. . police interrogations." Id Despite the Court's failure to provide a "comprehensive definition," we have little difficulty concluding that Stamps' statement to his girlfriend is not "testimonial" in nature. The statement was not made to an agent of the government or to someone engaged in investigating the shooting. The statement thus does not fall within any of the categories of testimonial statements expressly identified in Crawford (prior trial, preliminary-hearing and grand-jury testimony, and statements made during police interrogations). Neither does it appear to be the type of statement the Court found had historically been the "primary object" of the framer's concerns in enacting the confrontation clause. See id. at 1363-65.

¶ 22. The question remains, after Crawford, what test should be applied to determine whether the admission of Stamps' "nontestimonial" statement violated Manuel's confrontation right under the U.S. and Wisconsin Constitutions? The Supreme Court's answer was, at best, equivocal: "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Id. at 1374. One could read this pronouncement, together with the Court's earlier conclusion that the "primary object" of the confrontation clause is testimonial hearsay and the Court's extensive criticism of the Roberts approach, to mean that the admissibility of non-testimonial hearsay in criminal trials requires no Sixth Amendment analysis whatsoever, being determinable solely by application of evidentiary rules.

¶ 23. Because the Crawford majority did not expressly overrule Roberts, however, we proceed, in an abundance of caution, to analyze Manuel's confrontation clause claim under the Roberts analysis as discussed and applied in Weed. Under the second step of the Roberts test, a statement is presumptively reliable if it falls within a firmly rooted hearsay exception. Weed, 263 Wis. 2d 434, ¶ 23. A hearsay exception is firmly rooted if, "in light of longstanding judicial and legislative experience" it "rest[s] [on] such [a] solid foundatio[n] that admission of virtually any evidence within [it] comports with the substance of the constitutional protection." Lilly v. Virginia, 527 U.S. 116, 126 (1999) (citations omitted). For example, spontaneous declarations or excited utterances are considered to be firmly rooted hearsay exceptions because they are at least two centuries old, widely accepted among the states, and have substantial guarantees of trustworthiness. See id.; see also White v. Illinois, 502 U.S. 346, 357 (1992). The dying declaration exception and the exception for statements made for the purpose of obtaining medical treatment are also considered firmly rooted. See Idaho v. Wright, 497 U.S. 805, 820-21 (1990).

¶ 24. By contrast, the recent perception hearsay exception is not a common law exception and it is of recent vintage. See 4 Jack B. Weinstein et al., Weinsteins Evidence 804(b)(5)[04], 201-05 (1996). It did not become a part of the Wisconsin evidence code until 1974 and, at the time of its adoption, was described as a major change in Wisconsin law which presently would characterize the statement as inadmissible hearsay. Judicial Council Committee's Note, 1974, Wis. Stat. Ann. § 908.045 (West 2000). It appears that only three states in addition to Wisconsin currently recognize this exception: Hawaii, Kansas, and Wyoming. See Haw. Rev. Stat. Rule 804(b)(5) (2002); Kan. St. Ann. § 60-460(d)(3) (1997); Wyo. Stat. Rule 804(b)(5) (1978).

¶ 25. We have noted on several occasions that "there may be debate" over whether the recent perception exception is firmly rooted. See State v. Bollos, 230 Wis. 2d 495, 510, 602 N.W.2d 117 (Ct. App. 1999) (citing Kluever v. Evangelical Reformed Immanuels Congregation, 143 Wis. 2d 806, 813-14, 422 N.W.2d 874 (Ct. App. 1988)). The supreme court in Weed "assum[ed] that the recent perception exception is not firmly rooted" because "it is a relatively recent exception that has only been adopted by a few states, and is not based in the common law." Weed, 263 Wis. 2d 434, ¶ 24. We now take the final step suggested by these precedents and conclude that the recent perception exception under Wis. Stat. § 908.045(2) is not a firmly rooted hearsay exception because it lacks historical longevity and enjoys very limited acceptance.

¶ 26. Our conclusion is not necessarily fatal to the admissibility of Stamps' statement, however. Even if hearsay is admitted against a criminal defendant under an exception that is not firmly rooted, the confrontation clause is satisfied so long as the evidence bears "particularized guarantees of trustworthiness." Weed, 263 Wis. 2d 434, ¶ 23. The supreme court instructs us to proceed as follows:

In evaluating whether a statement evinces particularized guarantees of trustworthiness, we consider the "totality of the circumstances, but. . . the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Some factors that have been considered in assessing the reliability of a statement include spontaneity, consistency, mental state, and a lack of motive to fabricate. We look to see "if the declarants truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility . . .." In other words, we examine whether the statement is "so trustworthy that adversarial testing would add little to its reliability."

Id., 25 (citations omitted).

¶ 27. As applied to this case, the confrontation clause "trustworthiness" analysis is arguably circular in that it requires us to restate conclusions we have already reached in determining that Stamps' statement was admissible under Wis. Stat. § 908.045(2). In concluding that Stamps' statement to his girlfriend was properly admitted as a statement of recent perception, we determined that it was "made in good faith [and] not in contemplation of pending or anticipated litigation." In our hearsay analysis, we also explained why we rejected Manuel's speculations regarding Stamps' possible motives to fabricate, and we stated our conclusion that the record supports no other reasonable inference than that Stamps' statement was a spontaneous comment to his girlfriend, motivated by his need to explain why he wished to take her and their son to a motel for a few days.

¶ 28. We are thus satisfied that the circumstances surrounding Stamps' statement to his girlfriend render it sufficiently reliable that cross-examining Stamps as to its truthfulness would be of "marginal utility." Weed, 263 Wis. 2d 434, ¶ 25. Accordingly, admission of the statement did not violate Manuel's rights under the state and federal confrontation clauses.

¶ 29. Manuel's final claim is that he was deprived of his Sixth Amendment right to the effective assistance of counsel because his attorney failed to introduce evidence of Stamps' prior convictions. To sustain an ineffective assistance of counsel claim, a defendant must show that his trial counsel's performance was deficient and that this performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To show that counsel's performance prejudiced the defense, the defendant has the burden to prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

¶ 30. Whether a defendant received ineffective assistance of counsel is a mixed question of law and fact. See State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). We will not reverse the trial court's factual findings regarding counsel's actions unless they are clearly erroneous. See id. at 634. Whether counsel's performance was deficient and whether it prejudiced the defendant are questions of law we decide de novo. See id. In evaluating Manuel's claim, this court can choose to address either the "deficient performance" or the "prejudice" component first. Strickland, 466 U.S. at 697. If his claim fails on either component, we need not address the other. See id.

¶ 31. The State contends that trial counsel's failure to introduce evidence of Stamps' prior convictions in order to impeach the credibility of Stamps' statement did not result in prejudice to Manuel's defense. The State notes that the jury heard evidence that Stamps was a gang member, and that he had been arrested and taken to jail on a probation hold. The State argues that the jury had ample reason to question Stamps' credibility based on his gang affiliation and his conviction of a crime resulting in probation, and, therefore, evidence of the exact number of Stamps' convictions would have been of only marginal value in undermining Stamps' credibility. We agree.

¶ 32. The victim of the shooting testified that Stamps was a member of a street gang, and the police officer who spoke to his girlfriend testified that Stamps was arrested and taken to jail on a probation hold. Manuel argues that a jury of "laypersons" would not necessarily know that someone on probation had previously been convicted of a crime, and, moreover, even if jurors did make this inference, knowledge of Stamps' actual number of convictions (four) would have dealt a more significant blow to Stamps' credibility. We are not persuaded, however, that most jurors would not perceive that someone on probation had been convicted of a crime — that fact is not so obscure as to be beyond the knowledge of the average juror. And, when jurors are informed of a witness's criminal past, the precise number of the witness's convictions is unlikely to be outcome determinative. See State v. Trawitzki, 2001 WI 77, ¶ 44, 244 Wis. 2d 523, 628 N.W.2d 801.

¶ 33. Finally, we note that the record provides an alternative basis on which we may conclude that the failure to introduce evidence of Stamps' four convictions was not prejudicial. When a record contains strong evidence to support a verdict, it is less likely that a defendant can prove prejudice. Strickland, 466 U.S. at 696. The victim testified that he was acquainted with Manuel, that he had picked out Manuel's photo from an array as the shooter, and that he told police that he was "a hundred percent sure" of the identification. Circumstantial and physical evidence also placed Manuel at the scene of the crime. The police photographed shoe impressions made by the group of men standing on the terrace near the street where the shooting occurred. An expert from the State Crime Lab testified that shoes taken from the trunk of Manuel's car were consistent with the photographed impressions. Thus, the State produced strong evidence independent of Stamps' statement supporting Manuel's guilt, and Stamps' credibility was not crucial to the State's case against Manuel.

¶ 34. We conclude that, even if evidence of the number of Stamps' convictions would have incrementally weakened Stamps' credibility, there is no reasonable probability that the result of Manuel's trial would have been different if his counsel had established that Stamps had been convicted of four crimes. Because we conclude that Manuel has not satisfied his burden to prove that his attorney's performance prejudiced his defense, we do not address whether counsel's performance was deficient. See id. at 697.

CONCLUSION

¶ 35. For the reasons discussed above, we affirm the appealed judgment and order.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Stamps' girlfriend referred to the shooter as "Twin" and told the detective she did not know Twin's real name. The victim, however, identified Manuel at trial as the shooter, and he testified that he recognized him as a man known as "Twin," whom he had seen in the neighborhood on some twenty prior occasions.

       Reserve Judge E Charles Jones presided at Manuel's trial and sentencing. Circuit Judge Stuart A. Schwartz denied the postconviction motion.

       As we have noted, Stamps' girlfriend did not testify as to Stamps' out-of-court statement to her, claiming at trial that she remembered neither what Stamps had told her nor what she had told police on the topic. The State later introduced Stamps' statement to his girlfriend through the detective who had questioned her. Manuel did not object at trial, nor does he now ascribe error, to the admission of Stamps' girlfriend's statement to police, tacitly conceding that her statement to police was not hearsay but the prior statement of a trial witness that was inconsistent with her trial testimony. See Wis. Stat. § 908.01(4)(a)l; State v. Lenarchick, 74 Wis. 2d 425, 436, 247 N.W.2d 80 (1976) (concluding that "where a witness denies recollection of a prior statement, and.. . the trial judge has reason to doubt the good faith of such denial, he may in his discretion declare such testimony inconsistent and permit the prior statement's admission into evidence"). (See also footnote 7.)

       Stamps refused on Fifth Amendment grounds to testify at Manuel's trial, and Manuel does not dispute that Stamps was thus "unavailable." See Wis. Stat. § 908.04(l)(a).

       Manuel does not assert that Stamps had not "recently perceived" the shooting, that he made the statement at a time when his recollection of the shooting was not clear, or that it was made in response to a person investigating the shooting. We therefore do not address these other requirements for admissibility of a statement under Wis. Stat. § 908.045(2).

       As we have noted (see footnote 4), Manuel does not challenge, on either hearsay or confrontation clause grounds, the introduction of Stamps' statement by way of the police detective's testimony regarding what Stamps' girlfriend told him Stamps had said to her. The girlfriend's responses to the detective's questioning, although not hearsay pursuant to Wis. Stat. § 908.01(4)(a)l, might nonetheless be considered an out-of-court "testimonial" statement under Crawford v. Washington, 124 S. Ct. 1354 (2004). However, its introduction does not appear to violate the confrontation clause because the girlfriend testified at trial and was thus subject to Manuel's cross-examination regarding her statements to the detective. See also Vogel v. State, 96 Wis. 2d 372, 386-93, 291 N.W.2d 838 (1980) (concluding that the introduction of a trial witness's prior statement to police, after witness claimed not to remember it, did not violate confrontation clause because witness was subject to cross-examination concerning the prior statement).

       "Reliability is an amorphous, if not entirely subjective, concept," Crawford, 124 S. Ct. at 1371; "Roberts' failings were on full display in the proceedings below," id. at 1372.

       One Wisconsin commentator endorses this reading of Crawford's impact on the admissibility of non-testimonial hearsay:
      At the same time, however, the Crawford decision's reliance on "testimonial" evidence explicitly left open flexibility (including a reliability test) for the use of nontestimonial hearsay evidence. This type of evidence, according to the Court, did not implicate core Sixth Amendment concerns and should be more freely admitted at trial. The Court cited business records and coconspirator statements as two hearsay exceptions that do not involve testimonial evidence and thus do not require the Sixth Amendment right of confrontation.
      Steven M. Biskupic, Hearsay and the Confrontation Clause, Wisconsin Law., May 2004, at 19.

       Chief Justice Rehnquist, in a concurrence asserted that "the Court of course overrules Ohio v. Roberts." Crawford, 124 S. Ct. at 1378 (Rehnquist, C.J., concurring). We note, however, that the Connecticut Supreme Court has concluded that Crawford leaves the Roberts tests in place for determining, the admissibility of nontestimonial hearsay. State v. Rivera, 844 A.2d 191, 201 (Conn. 2004) (quoting Crawford, 124 S. Ct. at 1374 and holding that, "[i]n other words, nontestimonial hearsay statements may still he admitted as evidence against an accused in a criminal trial if it satisfies both prongs of the Roberts test, irrespective of whether the defendant has had a prior opportunity to cross-examine the declarant").

       The first step is witness unavailability, State v. Weed, 2003 WI 85, ¶ 23, 263 Wis. 2d 434, 666 N.W.2d 485, but as we have noted (see footnote 5), Manuel does not dispute that Stamps was unavailable to testify at trial.

       Wisconsin's recent perception exception is modeled on the rule proposed by the United States Supreme Court when it first promulgated the Federal Rules of Evidence in 1972. See 4 Jaok B. Weinstein et al., Weinsteins Evidence 804(b)(5) [Ó4], 201, 206 (1996). The proposed federal rule was rejected by Congress the following year, however, and the Federal Rules of Evidence thus do not include an exception for statements of recent perception. A report from the House of Representatives Committee on the Judiciary provides the following basis for Congress's rejection of proposed Rule 804(b)(2): "The Committee eliminated this Rule as creating a new and unwarranted hearsay exception of great potential breadth. The Committee did not believe that statements of the type referred to bore sufficient guarantees of trustworthiness to justify admissibility." Id., 804-13 (quoting H.R. Rep. No. 93-650, at 6 (1973)).

       On the possibility that we might conclude Manuel waived his confrontation clause challenge because his. trial counsel insufficiently raised it in the trial court, Manuel makes the alternative argument that his attorney's failure to properly raise a Confrontation Clause objection constituted ineffective assistance of counsel. We have chosen to address the constitutional claim directly and have rejected it on its merits. Thus, any objection to Stamps' statement on Sixth Amendment grounds by Manuel's trial counsel would have been properly overruled, and the failure to object on these grounds does not constitute deficient performance. See State v. Traylor, 170 Wis. 2d 393, 405, 489 N.W.2d 626 (Ct. App. 1992).