text:
    Cindy L. Klatt, Plaintiff-Appellant, v. Labor and Industry Review Commission and City of Waukesha, Defendants-Respondents.
    Court of Appeals

      No. 02-3218.

      Oral argument June 17, 2003.

    Decided August 13, 2003.

    2003 WI App 197
    (Also reported in 669 N.W.2d 752.)

      On behalf of the plaintiff-appellant, there was oral argument and briefs submitted by William R. Rettko of Rettko Law Offices, S.C. of Brookfield.
    On behalf of the defendant-respondent Labor and Industry Review Commission, there was oral argument and briefs submitted by William W Cassel.

    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 10-21-03.

   BROWN, J.

¶ 1. This appeal is from an order of the circuit court affirming a decision of the Labor and Industry Review Commission (LIRC) of the Department of Industry, Labor and Human Relations denying unemployment compensation to Cindy L. Klatt, a former patrol officer with the City of Waukesha Police Department. On appeal, Klatt contends that LIRC incorrectly concluded that she voluntarily terminated her employment without good cause attributable to the City of Waukesha, her employer. We hold that Klatt's conduct of moving to Burlington in violation of the residency requirements of the collective bargaining agreement between the City of Waukesha and the Waukesha police department was inconsistent with the continuation of the employer-employee relationship and she therefore voluntarily terminated her employment. We also conclude that Klatt failed to demonstrate that she had good cause to terminate her employment. We affirm.

¶ 2. The facts in this case are not in dispute. Klatt began her employment with the City of Waukesha Police Department in or around 1991. The 1991 collective bargaining agreement between the City of Wauke-sha and the Waukesha Professional Police Association contained the following language:

21.01 Employees will reside within twenty (20) minutes time of the Police Station subject to the approval of the Chief of Police. New employees must reside within twenty (20) minutes of the Station not later than three (3) months after completing their probationary period. This period may be extended for up to nine (9) additional months if a legal hardship would otherwise result.

In past agreements, the chief of police had the authority to grant an exemption to the residency requirement. In the most recent agreement, the City's common council had the authority to grant an exemption to the residency requirement.

¶ 3. On or about April 18, 2001, Klatt became engaged to a Racine County Sheriffs Department investigator. Klatt's fiancé had been employed by the Racine County Sheriffs Department for just under twelve years and his department also had a residency requirement requiring its members to live within Racine county. Due to the conflicting residency requirements of the collective bargaining agreement and the Racine County Sheriffs Department, Klatt and her fiancé would not be able to comply with each agency's residency requirement and live together as a married couple in one household. Klatt's fiancé's request for an exemption from his employer's residency requirement was denied.

¶ 4. On April 18, Klatt notified her deputy chief that she was going to request an exemption from the residency requirement because she had become engaged to an investigator for the Racine County Sheriffs Department, which also had a residency requirement. The deputy chief indicated that he would speak with the city administrator about the matter. On April 20, the deputy chief informed Klatt that the City would not allow the exemption because it was a contractual matter and would set a precedent. Klatt went to her union representative and asked him to work on her behalf to get a marital hardship exemption because she had worked for the police department for ten years and did not want to lose her job.

¶ 5. Klatt then made an appointment to meet with the mayor of Waukesha at city hall to discuss getting an exemption from the residency requirement. When Klatt arrived at city hall, she was informed that she should speak with the city administrator instead of the mayor. The city administrator explained that he would introduce her request to the Human Resources Committee of the Common Council at their next meeting on June 13 and that Klatt should leave a short letter stating the reason she was requesting the exemption from the residency requirement. On May 31, Klatt submitted a request for an exemption from the residency requirement to the Human Resources Committee.

¶ 6. At the June 13 meeting of the Human Resources Committee, Klatt was given the opportunity to explain her need for an exemption from the residency requirement. Klatt explained that her flaneé was a Racine County Sheriffs Department investigator whose department had a residency requirement mandating that he live in Racine county. Klatt also informed the committee that her flaneé asked the Racine county sheriff for an exemption and he refused to grant an exemption. In addition, Klatt informed the committee that her flaneé had two teenage children from a prior marriage who lived in the Burlington area, which is located in Racine county, and that they were trying to seek an exemption from the City of Waukesha because her flaneé had his children at least once a week and was involved with activities with his children. The committee denied Klatt's exemption request. The committee explained that the contract was specific and, although the committee sympathized with her situation, they were not going to allow for an exemption.

¶ 7. On August 17, Klatt moved out of Waukesha county to a residence in Burlington. On that same date, she provided her immediate supervisor with an interoffice memo informing him of her change of address. On August 27, her lieutenant asked her to submit an interoffice memo explaining her exact intentions. Klatt submitted the memo and in it clearly stated that she had no intention of quitting her position as an officer in the Waukesha police department. On August 28, Klatt received a letter informing her that she was in violation of the collective bargaining agreement and had thirty days to comply with the residency requirement.

¶ 8. On September 25 or 26, Klatt was notified that her union and the City of Waukesha had not reached an agreement and she needed to meet at city hall on September 28, at which time she was going to be terminated. On September 28, Klatt appeared at city hall and handed her deputy chief and the city administrator a letter requesting a one-year exemption from the residency requirement. At the same time, Klatt's deputy chief handed her a letter stating that her employment with the Waukesha police department was terminated effective 11:00 p.m. that same day.

¶ 9. In October, a deputy of the Department of Workforce Development issued an initial determination which found that in the week ending September 29, Klatt had terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) (2001-02). The effect of this determination was to render Klatt ineligible for certain unemployment compensation benefits pursuant to the statute. Klatt appealed. After a hearing on the matter, an administrative law judge issued an appeal tribunal decision reversing the initial determination and finding that Klatt had terminated her employment with good cause attributable to the City, within the meaning of § 108.04(7)(b). The City filed a petition for review with LIRC. LIRC reversed the appeal tribunal decision and reinstated the initial determination's finding that Klatt had terminated her employment with the city, within the meaning of § 108.04(7)(a). The circuit court affirmed and Klatt now appeals.

¶ 10. We first turn to the scope of our review. We review LIRC's factual findings and legal conclusions, not those of the circuit court. Michels Pipeline Constr., Inc. v. LIRC, 197 Wis. 2d 927, 930, 541 N.W2d 241 (Ct. App. 1995). Whether Klatt is entitled to unemployment benefits under Wis. Stat. ch. 108 is a mixed question of law and fact. See Michels, 197 Wis. 2d at 931. Because the parties do not contest the material facts on appeal, our review is limited to LIRC's application of the unemployment benefits statutes to these facts, which presents a question of law. See id.

¶ 11. When reviewing LIRC's conclusions of law, we apply a sliding scale of deference that is contingent upon the level of LIRC's experience, technical competence and specialized knowledge. Bretl v. LIRC, 204 Wis. 2d 93, 104-05, 553 N.W.2d 550 (Ct. App. 1996). The greatest level of deference requires that we give great weight to LIRC's legal conclusions if: (1) the agency was charged by the legislature with the duty of administering the statute, (2) the interpretation of the agency is one of long-standing, (3) the agency employed its specialized knowledge or expertise in forming the interpretation, and (4) the agency's interpretation will provide consistency and uniformity in the application of the statute. Tannler v. DHSS, 211 Wis. 2d 179, 184, 564 N.W.2d 735 (1997). The next level of deference provides that if LIRC's decision is very nearly one of first impression, we must give due weight to that decision. Brett, 204 Wis. 2d at 104-05. Finally, we owe no deference to LIRC and will conduct a de novo review if it is clear that the case is one of first impression and LIRC's special expertise and experience are no greater than ours. Id.

¶ 12. The parties dispute the level of deference we should give LIRC's conclusions of law. Klatt argues that de novo review is appropriate because there are no published decisions applying the statutory provisions of Wis. Stat. ch. 108 to an employee who terminates his or her employment by failing to comply with a municipal or county residency requirement. Alternatively, Klatt contends that the second level of review, the "due weight" standard, should be used as opposed to the "great weight" standard because LIRC's decision is, at least, "very nearly" one of first impression. LIRC responds that it has been charged with the duty of administering Wis. Stat. § 108.04(7)(a) and (b) and its interpretation of these statutes is long-standing and, therefore, its decision is entitled to great weight deference.

¶ 13. We are satisfied that LIRC meets the criteria for great weight deference in this case. Klatt is challenging LIRC's determinations that she had voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and that she had not demonstrated "good cause" for terminating her employment within the meaning of § 108.04(7)(b). As LIRC observes, it is charged with the duty of administering § 108.04(7)(a) and (b) and has gained significant experience in interpreting and applying those statutes in the discharge of its duty, including in situations dealing with municipal or county residency requirements.

¶ 14. We reject Klatt's argument that a de novo or due weight deference review of LIRC's ruling is appropriate based on the lack of published precedent interpreting Wis. Stat. ch. 108 in a situation where an employee has terminated his or her employment by failing to comply with a municipal or county residency requirement. First, the lack of published precedent does not indicate that this is an issue of first impression or very nearly an issue of first impression for LIRC. Second, it is not necessary that LIRC has previously ruled on the application of ch. 108 to a factual situation exactly similar to the one presented if LIRC otherwise has extensive experience in administering the statutory scheme in a variety of situations. See Town of Russell Volunteer Fire Dep't v. LIRC, 223 Wis. 2d 723, 733, 589 N.W2d 445 (Ct. App. 1998) ("The correct test under Wisconsin law is whether LIRC has experience in interpreting a particular statutory scheme, not whether it has ruled on precise, or even substantially similar, facts before."); Honthaners Rests., Inc. v. LIRC, 2000 WI App 273, ¶ 12, 240 Wis. 2d 234, 243, 621 N.W.2d 660 (noting that even where LIRC has not decided a case presenting the precise facts raised on appeal, the court may still accord LIRC great weight deference). Accordingly, because we conclude that LIRC's determination should be accorded great weight deference, we will uphold LIRC's decision so long as it was reasonable, even if we feel that an alternative interpretation is more reasonable. See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W2d 98 (1995).

¶ 15. Bearing this deferential standard of review in mind, we now turn to the core issue on appeal: whether Klatt should be denied unemployment compensation benefits on the grounds that she voluntarily terminated her employment without good cause attributable to the City of Waukesha. The applicable law governing payment of unemployment compensation is Wis. Stat. § 108.04(7), which states the general rule that an employee who voluntarily terminates his or her employment with an employing unit is ineligible for benefits. One exception to this rule is that the employee may receive benefits if he or she voluntarily terminates his or her employment with good cause attributable to the employing unit. Nottelson v. DILHR, 94 Wis. 2d 106, 118, 287 N.W2d 763 (1980). The meaning of the statutory terms "voluntary termination" and "good cause attributable to the employing unit" have been developed in case law. In Dentici v. Industrial Commission, 264 Wis. 181, 186, 58 N.W.2d 717 (1953), our supreme court set forth the applicable test for determining whether a discharge constitutes a "voluntary termination":

When an employee shows that he [or she] intends to leave his [or her] employment and indicates such intention by word or manner of action, or by conduct inconsistent with the continuation of the employee-employer relationship, it must be held. .. that the employee intended and did leave his [or her] employment voluntarily.

Our supreme court has interpreted "good cause attributable to the employing unit" as meaning some act or omission by the employer justifying the employee's quitting; it involves "some fault" on the part of the employer and must be "real and substantial." Kessler v. Indus. Comm'n, 27 Wis. 2d 398, 401, 134 N.W2d 412 (1965).

¶ 16. LIRC concluded that the facts established that Klatt's termination was voluntary and the voluntary termination was not with good cause attributable to the City. Klatt challenges this determination on two grounds. First, Klatt contends that her conduct was not inconsistent with the continuation of the employer-employee relationship and therefore she did not voluntarily terminate her employment. Relying on Holy Name School v. DILHR, 109 Wis. 2d 381, 382, 326 N.W.2d 121 (Ct. App. 1982), Klatt maintains that LIRC incorrectly decided that she, by moving to Burlington while knowing that residing within twenty minutes of the police station was a condition of continuing employment, engaged in conduct which was inconsistent with the continuation of the employer-employee relationship. In the alternative, Klatt argues that her case comes under Nottelson, 94 Wis. 2d at 124-25, and contends that she raised a "meritorious justification," that being her constitutional right to marriage and family, for her decision to move in violation of the residency requirement and, as a result, her conduct cannot be considered inconsistent with the. continuation of the employer-employee relationship. Second, Klatt contends that the City's conduct provided good cause for her decision to terminate her employment. We address these arguments in turn.

¶ 17. Klatt maintains that her circumstances are akin to those of the employee in Holy Name and argues that, like the employee in that case, her termination was not voluntary. In Holy Name, we* addressed whether the claimant, Retlick, a Catholic schoolteacher, had voluntarily terminated her employment so as to bar her claim for unemployment compensation benefits when she married a divorced man before she had taken all the steps necessary to have the marriage blessed. Holy Name, 109 Wis. 2d at 387-88. During her employment, school personnel discovered that Retlick planned to marry a divorced man. Id. at 384. The school principal informed Retlick that in order to comply with the tenets of the Catholic church and to be considered a practicing Catholic, she and her fiancé had to take steps to have the church annul her fiancé's former marriage and to bless her marriage to her fiancé. Id. The principal also advised Retlick that her failure to comply with these requirements could result in a loss of employment because she would be in violation of her teaching contract, the "Declaration of Catholic Educational Philosophy," which required her to set an example for her students, and a written diocesan educational board policy for religion teachers containing requirements for practicing Catholics. Id. Although Retlick had initiated proceedings to have her fiancé's former marriage annulled and her marriage blessed, this process was not completed when she married. Id. at 384-85. Retlick's contract for the new school year was not renewed and Retlick applied for unemployment compensation. Id.

¶ 18. We held that Retlick did not voluntarily terminate her employment pursuant to Wis. Stat. § 108.04(7)(a). Holy Name, 109 Wis. 2d at 389. We concluded that sufficient evidence supported LIRC's determination that Retlick intended to preserve her employment relationship and that her conduct in marrying was not inconsistent with the continuation of the employment relationship. Id. at 388-89. We explained that even prior to her discussion with the principal concerning the ramifications of her impending marriage, Retlick had contacted a priest to initiate annulment proceedings. Id. at 388. We noted that when Retlick began the annulment and marriage validation procedure, she and her fiancé had not yet set a definite wedding date and that only a personal crisis involving her fiancé's two small children prompted their sudden decision to marry so that she could be a mother to the children. Id. Of great importance to this case was our observation that Retlick continued to take steps to have her marriage validated so that she would be in compliance with her employer's rules both after her contract was not renewed and after her marriage. Id.

¶ 19. Here, Klatt argues that her conduct is analogous to Retlick's ongoing effort to satisfy her employer's requirement that her fiancé's marriage be annulled. Klatt goes to great lengths to demonstrate how she took every reasonable step she could to maintain her employment and persuade the City to grant her an exemption from the residency requirement and argues that because she did essentially everything she could to obtain such an exemption she, like Retlick, did not voluntarily terminate her employment. Klatt, however, misses a key distinction. In Holy Name, Retlick's efforts were directed at complying with the religious requirements in order to retain her employment and she was in the process of trying to comply with them at the time of her termination. By contrast, Klatt's efforts were all directed towards obtaining an exemption from the residency requirement. It would not be possible for Klatt to move to Burlington and satisfy the dictates of the collective bargaining agreement. As Holy Name teaches us, a determination of whether there has been a voluntary termination is dependent on an employee's conduct; it must be inconsistent with the continuation of the employment relationship. See id. at 388-89. After her requests for an exemption were all denied, Klatt chose to move to Burlington to reside with her new husband, and to stay there, knowing that this violated the residency requirement and that she would not be able to retain her employment. Her conduct was clearly contrary to her employer's interests and was not consistent with the continuation of the employment relationship. We, therefore, reject Klatt's attempt to analogize her situation to the one presented in Holy Name.

¶ 20. Klatt next relies on Nottelson and argues that like the employee in that case, she has a "meritorious justification" for her violation of the residency requirement and thus her conduct was not inconsistent with the continuation of the employer-employee relationship. There, Nottelson was discharged for failing to pay union dues. Nottelson, 94 Wis. 2d at 111. Nottelson objected to the requirement that he pay union dues based on religious grounds and prior to his termination obtained a restraining order preventing the termination on the basis that his union might have discriminated against him due to his religion in violation of Title VII of the Civil Rights Act of 1964. Nottelson, 94 Wis. 2d at 111-12. We held that because Nottelson had a meritorious justification for his conduct — that is, whether his religious beliefs as protected by the Federal Civil Rights Act relieved him of his obligation to pay the union dues — his conduct was consistent with the continuation of the employee-employer relationship. Id. at 124-25.

¶ 21. Here, Klatt invokes her constitutional right to marriage and family and argues that it is akin to Nottelson's assertion of his right to freedom of religion. While Klatt acknowledges that it is well established that there is nothing objectionable, constitutionally or otherwise, about ordinances requiring public employees to maintain a specific municipal or county residence, Klatt maintains that under the circumstances of this case the otherwise enforceable residency requirement is unconstitutional and unenforceable. For support, Klatt cites Cardenas v. Fire and Police Comm'n of City of Milwaukee, 167 F. Supp. 2d 1055 (E.D. Wis. 2001), and argues that the court there held that the enforcement of a residency requirement violated the employee's constitutional right to family and marriage.

¶ 22. Klatt's reliance on Nottelson and Cardenas is misguided. First, Klatt misinterprets Cardenas. In that case, the court reversed a decision of the Fire and Police Commission of the City of Milwaukee denying an employee's request for a hardship exemption from the city's residency requirement. Cardenas, 167 F. Supp. 2d at 1066. There, the employee was faced with the decision either to send his children to a school for the deaf so they could obtain the special education they required and live apart from them or move so he could live near his children and be terminated from his employment with the city. Id. at 1056-57. The court's decision to reverse the denial of the exemption was premised on the fact that the Fire and Police Commission had exceeded its jurisdiction in ruling on the request by failing to consider the statutorily enumerated factors for determining whether a hardship exemption was warranted. Id. at 1063-65. Nowhere did the court hold that the failure to grant the hardship exemption violated the employee's constitutional right to marriage and family.

¶ 23. Second, contrary to Klatt's assertions that she is not attacking the constitutionality of the residency requirement, we can come to no other conclusion but that she is doing just that, at least as applied to her. But the law is that state or local regulations are not unconstitutional deprivations of the right of family association unless they regulate the family directly. Hameetman v. City of Chicago, 776 F.2d 636, 643 (7th Cir. 1985) (refusing to invalidate a residency requirement merely because it might have the incidental and unintended effect of inducing family members to live apart). The collateral consequences of regulations not directed at the family do not bring the constitutional rights of family into play. Id. In the other cases Klatt cites, the statutes at issue were found unconstitutional because they directly interfered with the right to marry or the right to procreate. See Zablocki v. Redhail, 434 U.S. 374, 375, 386-87 (1978) (statute prohibited marriage for anyone owing back child support); Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (anti-miscegenation statute); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 536, 538 (1942) (statute mandated sterilization for two-time sex offenders). Here, however, the residency requirement does not directly interfere with Klatt's right to marry. The requirement does not dictate whom Klatt may or may not marry. Klatt may marry whomever she chooses; she is only required to live within a certain designated area. The fact that Klatt may not live with an individual who has a conflicting residency requirement is an incidental and unintended consequence of a requirement contained in a negotiated collective bargaining agreement. Thus, Klatt's argument, that she, like Nottelson, had a "meritorious justification" for her actions, fails.

¶ 24. While we recognize that Klatt faced an unpleasant decision, it was her choice to make. She chose to move to Burlington to live with her husband and stay there with the knowledge that she would be in violation of the collective bargaining agreement and that this was contrary to her employer's interests and would mean the end of her employment. We conclude that Klatt's failure to adhere to the terms of the residency requirement amounted to conduct inconsistent with the continuation of her employment relationship. Accordingly, we uphold LIRC's determination that her actions constituted voluntary termination pursuant to Wis. Stat. § 108.04(7)(a).

¶ 25. Having concluded that Klatt voluntarily terminated her employment, the next question is whether that termination was with "good cause" pursuant to Wis. Stat. § 108.04(7)(b). We emphasize that to demonstrate good cause, Klatt must show that her termination involved some real and substantial fault on the part of the employer. In support of her argument that she had good cause, Klatt cites to the administrative law judge's opinion, which relied on Klatt's substantial efforts to gain an exception to the residency requirement to justify its conclusion. However, LIRC reversed that opinion and it is the LIRC opinion that we review. While we sympathize with Klatt and are cognizant that she had a difficult choice to make, we fail to see how her termination was due to an act or omission on the part of the City that we can chalk up to "fault." Instead, the City was simply seeking to enforce a provision that the union had agreed to in the bargaining process. Klatt also attempts to raise a constitutional challenge to the residency requirement in the context of her good cause argument. As discussed above, this argument is without merit. We therefore conclude that Klatt failed to demonstrate good cause for terminating her employment. Accordingly, we affirm LIRC's decision.

By the Court. — Order affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

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

      No. 03-2039-D.

      Decided November 7, 2003.

    2003 WI 137
    (Also reported in 671 N.W.2d 1.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Jevon J. Jaconi and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12. On July 31, 2003, the OLR filed a complaint in this court alleging 20 separate counts of misconduct against Ja-coni. Jaconi did not file an answer but instead he and the OLR filed a SCR 22.12 stipulation in which Jaconi admitted the facts and misconduct as alleged in the OLR's complaint and agreed to the level of discipline the OLR sought in this disciplinary matter — a one-year suspension of Jaconi's license to practice law in this state, plus a requirement that Jaconi refund money to clients and an individual who paid a portion of his fees.

¶ 2. We approve the stipulation and adopt the stipulated facts and conclusions regarding Jaconi's 20 counts of misconduct as alleged in the OLR's complaint. We determine that the seriousness of Jaconi's misconduct warrants suspension of his license to practice law in this state for a period of one year. We also agree that Jaconi should be required to make the refunds to his clients and the other individual in the amounts stipulated.

¶ 3. Attorney Jevon Jones Jaconi was admitted to practice law in Wisconsin in 1998 and has not previously been disciplined. Currently he is not practicing law; his license was administratively suspended on June 3, 2003, for his failure to comply with mandatory CLE requirements.

¶ 4. In the OLR's disciplinary complaint filed in this court it was alleged that Jaconi had committed 20 separate counts of misconduct. Those counts involved Jaconi's representation of seven separate clients. In partial explanation for his numerous acts of misconduct Jaconi has submitted a "personal statement" which was incorporated in that stipulation. Jaconi's statement asserts that he' was elected district attorney for Ke-waunee county immediately upon his graduation from the University of Dayton Law School and his successful completion of the Wisconsin bar exam. Prior to that time, according to Jaconi, he had neither prosecuted nor defended a criminal case. After one term as district attorney, Jaconi did not run for reelection and opened his own practice. As noted, he is no longer practicing law having been administratively suspended for failure to comply with mandatory CLE requirements.

¶ 5. Jaconi now admits to the facts and misconduct as alleged in the OLR complaint. Briefly summarized, the allegations are these:

I. REPRESENTATION OF M.N.

COUNTS ONE THROUGH FIVE

¶ 6. The OLR complaint alleged, and Jaconi now stipulates, that on August 18, 2001, M.N. hired Jaconi to represent her on a felony matter in Brown County Circuit Court; she agreed to pay him a flat fee of $1250 and paid $600 of that amount on September 11, 2001. At Jaconi's request, M.N. signed an "Authorization to Appear" so that Jaconi could appear in court on her behalf without her being present. However, an Authorization to Appear does not apply in felony matters in Wisconsin; defendants charged with a felony must appear personally. Jaconi erroneously informed M.N. that she did not need to personally appear at her adjourned initial appearance. When neither Jaconi nor M.N. appeared at that adjourned hearing, a bench warrant for M.N.'s arrest was issued; an additional complaint was then filed against her for felony bail jumping.

¶ 7. After M.N. was informed about the bench warrant, she repeatedly called Jaconi but he did not return her calls. She then personally scheduled a hearing in the circuit court seeking to quash the warrant. Although Jaconi had not returned any of her calls he appeared at that hearing. The circuit court subsequently cancelled the bench warrant but informed M.N. and Jaconi that additional paperwork would be needed to fully resolve the bail jumping issue. Jaconi stated he would take care of that paperwork but failed to do so.

¶ 8. Later when M.N. was arrested on the felony bail jumping charge, she repeatedly called Jaconi but received no response from him. She then retained substitute counsel.

¶ 9. M.N. sent Jaconi a certified letter terminating his services and requesting that he return her file and the $600 fee she had paid. Jaconi failed to respond to that letter. However, he subsequently appeared at M.N.'s pretrial conference and gave her file back and gave her a check dated December 7,2001, written on his law office account in the amount of $600. M.N., however, was unable to cash that $600 check because there were insufficient funds in Jaconi's office account to cover it. Subsequently, on January 2, 2002, that account was closed. Although she telephoned him many times about that dishonored check, Jaconi never responded. M.N. made over 25 calls to Jaconi but he never telephoned or wrote to her although ultimately she did receive a $600 refund from him.

¶ 10. Based on this admitted course of conduct the OLR complaint charged Jaconi with five counts of misconduct, to which he now stipulates:

COUNT ONE: By incorrectly advising M.N. that she did not need to appear at the adjourned initial appearance in a felony criminal matter, resulting in M.N.'s failure to appear and in a criminal charge against her for felony bail jumping, for which she was arrested, Jaconi failed to provide competent representation to M.N., in violation of SCR 20:1.1.
COUNT TWO: By failing to take appropriate steps after September 12, 2002, to fully resolve the bail jumping issue, such that a felony bail jumping complaint and arrest warrant were subsequently issued in the matter, Jaconi failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
COUNT THREE: By failing to keep M.N. informed about the status of her matter and by failing to promptly respond to her requests for information, Jaconi failed to respond to reasonable requests for information, in violation of SCR 20:1.4(a).
COUNT FOUR: By failing to promptly refund an unearned retainer, Jaconi failed to take steps to the extent reasonably practicable to protect a client's interest, in violation of SCR 20:1.16(d).
COUNT FIVE: By writing and providing to M.N. his $600 check on his law firm account that Jaconi knew could not be cashed, Jaconi engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

II. REPRESENTATION OF T.O.

COUNTS SIX THROUGH NINE

¶ 11. The OLR complaint alleged, and Jaconi now stipulates, that on November 28, 2001, T.O. hired Jaconi to represent her in municipal court in DePere on charges of operating while intoxicated, operating with a prohibited blood alcohol content, obstruction, and operating after suspension. Jaconi appeared with T.O. at her initial appearance at which she entered a not guilty plea. At that time, T.O. informed Jaconi that her primary concern was with the OWI charge; he assured her that he would get that charge reduced. T.O. paid Jaconi $250 as half payment of the flat fee of $500 he had agreed to accept to represent her.

¶ 12. T.O. called Jaconi numerous times over the next two-week period but received no response from him until December 13, 2001, when he called and asked her to meet him that evening. She did so and Jaconi again assured her that he would get the OWI charge reduced; he also stated that he could get the other charges dropped. At that meeting, T.O. wrote Jaconi a check for the remaining $250 on his agreed upon fee. According to T.O., Jaconi promised to provide her a receipt for those payments and stated that he would call her with respect to the status of her case. However, between December 13, 2001, and January 3, 2002, Jaconi failed to respond to T.O.'s numerous telephone calls.

¶ 13. On January 3, 2002, Jaconi telephoned T.O. and told her that her trial was scheduled for that evening. T.O. had not received any prior notice of that trial date; nor had she received anything in writing from Jaconi about the scheduled trial. Jaconi told T.O. that she would be pleading no contest to the OWI charge. When T.O. again told him that she did not want to plead no contest to the OWI count, Jaconi told her that he would talk to the prosecuting attorney and get back to her before the trial. He did not do so. Instead, on January 3, 2002, Jaconi appeared in municipal court on T.O.'s behalf and entered a plea of no contest for her to the OWI charge. She was not present at that hearing.

¶ 14. As part of the penalty for the OWI violation, T.O.'s driver's license was suspended for seven months. Jaconi, however, did not inform T.O. about the seven-month suspension or about the disposition of her OWI case, and despite her repeated telephone calls to him after January 3, 2002, Jaconi never responded.

¶ 15. On February 28, 2002, T.O. sent a certified letter to Jaconi dismissing him as her attorney and requesting an accounting for the $500 fee she had paid. She also asked for copies of all the paperwork pertaining to her case. That certified letter was returned unclaimed.

¶ 16. After the OWI charge against her had been resolved in municipal court, T.O. continued to drive unaware that her license had been suspended for seven months. Subsequently, she received a citation for operating after suspension.

¶ 17. Based on this admitted course of conduct, the OLR complaint charged Jaconi with an additional four counts of misconduct, to which he now stipulates:

COUNT SIX: By failing to maintain proper communication with T.O., Jaconi failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).
COUNT SEVEN: By failing to adequately explain to T.O. her plea options so she could make informed decisions regarding her representation, Jaconi failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, in violation of SCR 20:1.4(b).
COUNT EIGHT: By failing to abide by T.O.'s decision not to plead no contest to the OWI charge, Jaconi failed to abide by a client's decisions concerning the objectives of representation and consult with the client as to the means by which they are to be pursued, in violation of SCR 20:1.2(a).
COUNT NINE: By failing to provide T.O. with documents relating to the disposition of her case, and by failing to provide T.O. with an accounting of the $500 she paid him, Jaconi failed to take steps to the extent reasonably practicable to protect a client's interests, in violation of SCR 20:1.16(d).

III. REPRESENTATION OF J.Y.

COUNTS TEN THROUGH TWELVE

¶ 18. The OLR complaint alleged, and Jaconi now stipulates, that on August 8, 2001, Jaconi agreed to represent J.Y. and commence a divorce action on J.Y.'s behalf for a flat fee of $1200. On August 8, 2001, J.Y.'s friend paid $200 to Jaconi toward that fee. On November 20, 2001, J.Y. paid Jaconi $125; then on January 25, 2002, J.Y. paid Jaconi an additional $50.

¶ 19. J.Y. also discussed with Jaconi a potential medical malpractice claim and gave Jaconi copies of J.Y.'s medical records and medication histories concerning that claim.

¶ 20. After their initial August 8, 2001, conference, J.Y. had only one additional meeting with Jaconi. After that second meeting, J.Y. had no further contact with Jaconi.

¶ 21. Jaconi never prepared a petition for divorce on J.Y.'s behalf nor did he return J.Y.'s repeated telephone calls about the matter. On March 13, 2002, J.Y. sent Jaconi a certified letter terminating his representation and requesting the return of the money that had been paid toward Jaconi's fee. After three attempts at delivery, J.Y.'s letter was returned by the post office as unclaimed.

¶ 22. Jaconi subsequently informed the OLR investigators that he was willing to refund the money J.Y. and his friend had paid but Jaconi feared that might be construed as an attempt by him to inappropriately influence an OLR grievant. Jaconi was advised by the OLR that he could refund J.Y.'s money and it would not be construed as an attempt by him to influence a grievant. Despite that assurance, Jaconi never refunded J.Y.'s payments and has not returned J.Y.'s medical documents.

¶ 23. Based on this admitted course of conduct, the OLR complaint charged Jaconi with three counts of professional misconduct, to which he now stipulates:

COUNT TEN: By failing to commence a divorce action on behalf of J.Y. over the course of six months, Jaconi failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
COUNT ELEVEN: By failing to respond to J.Y.'s phone calls or otherwise communicate with J.Y. after the two initial meetings, and by failing to accept a certified letter from J.Y., Jaconi failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).
COUNT TWELVE: By failing to return J.Y's money, and by failing to return the materials relating to J.Y.'s malpractice claim, Jaconi failed to take steps to the extent reasonably practicable to protect a client's interests, in violation of SCR 20:1.16(d).

REPRESENTATION OF D.C.

COUNTS THIRTEEN AND FOURTEEN

¶ 24. The OLR complaint alleged, and Jaconi now stipulates, that in November 2001 D.C. hired Jaconi to represent her in a divorce action for a $1200 flat fee. She paid him $800 of that agreed upon fee. D.C. was thereafter hired by Jaconi to work in his office; however, based on her observations there, she changed her mind about having him represent her in her divorce action. D.C. then requested a refund of the $800 fee she had paid. On December 14, 2001, she met with Jaconi and he gave her a check drawn on his law office account in that amount. Jaconi asked her, however, to wait until December 17, 2001, to cash the check.

¶ 25. After December 17, 2001, D.C. contacted Jaconi's bank on several occasions to determine if there were sufficient funds in his account to cover the check. Each time she was advised that there were not. Jaconi subsequently closed that account on January 2, 2002. Thereafter, D.C. made several unsuccessful attempts to contact Jaconi about the return of her money and about the worthless check he had given her. She subsequently filed a complaint with the Kewaunee County Sheriffs Department. After Jaconi was contacted by the sheriffs department, he returned D.C.'s $800 and also paid the handling fee charged by the sheriffs department. D.C. then withdrew her complaint.

¶ 26. Based on this admitted course of conduct, the OLR complaint charged Jaconi with an additional two counts of professional misconduct, to which he now stipulates:

COUNT THIRTEEN-. By failing to have sufficient funds in his law office account to cover the $800 refund check he issued to D.C., and by not returning those funds to D.C. until she had filed a complaint with the Kewaunee County Sheriffs Department, Jaconi failed to take steps to the extent reasonably practicable to protect a client's interests, and failed to refund an advance payment of fee that had not been earned, in violation of SCR 20:1.16(d).
COUNT FOURTEEN: By providing to D.C. his $800 check on his law firm account that Jaconi knew could not be cashed, Jaconi engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

IV REPRESENTATION OF R.J.

COUNTS FIFTEEN AND SIXTEEN

¶ 27. The OLR complaint alleged, and Jaconi now stipulates, that in June 2001 Jaconi was appointed by the state public defender to represent R.J. in a felony criminal matter in Brown County Circuit Court. Jaconi represented R.J. until December 12, 2001, at which time successor counsel was appointed. Jaconi did not represent R.J. at the time of the disposition of the criminal matter.

¶ 28. Between July 2001 and October 15, 2001, R.J. and/or his family members made numerous telephone calls to Jaconi attempting to discuss or learn the status of the criminal matter. All of those calls were unanswered. In addition, on one occasion Jaconi failed to be available for a prearranged conference call with R.J., and Jaconi failed to visit R.J. in prison.

¶ 29. Jaconi appeared at R.J.'s arraignment on July 16, 2001, and again at R.J.'s final pretrial conference on October 15, 2001. Prior to those appearances, R.J. had informed Jaconi that he did not want to enter into a plea agreement; rather, R.J. told Jaconi that he wanted to proceed to trial on the criminal charge. Despite that instruction, Jaconi wrote a letter to the assistant district attorney handling the criminal matter inquiring about the possibility of a plea bargain. The prosecutor responded with a proposed plea agreement but Jaconi did not inform R.J. about that correspondence.

¶ 30. At R.J.'s October 15, 2001, pretrial conference, Jaconi urged R.J. to accept the plea bargain because R.J. was already in prison. Again R.J. told Jaconi that he wanted to go to trial on the criminal charge. Despite R.J.'s repeated statements that he wanted a trial, Jaconi did not undertake thorough pretrial preparations. When R.J. later told Jaconi that he wanted someone else to represent him, Jaconi withdrew as counsel.

¶ 31. Based on this admitted course of conduct regarding his representation of R.J., the OLR complaint charged Jaconi with an additional two counts of professional misconduct, to which he now stipulates:

COUNT FIFTEEN: By failing to prepare for a trial, and instead pursuing a plea agreement with the district attorney when his client was adamant from the outset that he wanted to go to trial, Jaconi failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
COUNT SIXTEEN: By failing to respond to reasonable requests for information and by failing to keep R.J. reasonably informed about the status of a matter from July 2001 to October 15, 2001, Jaconi failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

V REPRESENTATION OF VS.

COUNTS SEVENTEEN AND EIGHTEEN

¶ 32. The OLR complaint alleged, and Jaconi now stipulates, that on September 20, 2001, VS. hired Jaconi to represent him in a small claims matter and paid Jaconi $200 toward the agreed upon $500 flat fee. Jaconi thereafter filed a small claims action on December 6, 2001, naming K Motors as the defendant. VS. subsequently notified Jaconi that K Motors had not been served with a small claims summons and complaint because that defendant had changed its name to Easy Auto Sales.

¶ 33. At the initial return date of December 26, 2001, Jaconi appeared in the small claims action; however, because an amended complaint was needed naming Easy Auto Sales as the defendant, an adjourned return date of January 14, 2002, was scheduled. After December 26, 2001, however, VS. was unable to reach Jaconi despite his numerous attempts to do so by telephone and letter. Four subsequent return dates were adjourned because Jaconi failed to appear.

¶ 34. VS. then sent a letter to Jaconi expressing displeasure about the quality of Jaconi's services and complaining that Jaconi had not returned his telephone calls and had failed to appear on the scheduled court dates. In that letter, VS. informed Jaconi that the next court date was April 10, 2002, and asked Jaconi to contact him before that date. Jaconi did not do so. On April 10, 2002, Jaconi appeared in the small claims matter. However, because he had not contacted VS. prior to that return date, Jaconi was unaware that VS. would be unable to appear at that date because of a work conflict. The small claims action was then dismissed on that date because of VS.'s failure to appear.

¶ 35. Based on this admitted course of conduct regarding his representation of VS., the OLR complaint charged Jaconi with an additional two counts of professional misconduct, to which he now stipulates:

COUNT SEVENTEEN: By failing to appear at several court dates and by failing to file and serve necessary amended pleadings, Jaconi failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
COUNT EIGHTEEN. By failing to respond to VS.'s numerous telephone and written inquiries, Jaconi failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

VII. REPRESENTATION OF VS.

COUNTS NINETEEN AND TWENTY

¶ 36. The OLR complaint alleged, and Jaconi now stipulates, that in late 2001 VS. contacted Jaconi about representing VS. and J.B. in an ordinance violation matter involving VS.'s alleged use of J.B.'s hunting license. On January 8, 2002, VS. paid Jaconi a flat fee of $250 for the representation. The matter was scheduled for a plea hearing on January 22, 2002. Prior to that date, VS. left several telephone messages for Jaconi but received no response from him.

¶ 37. On the January 22, 2002, plea-hearing date, Jaconi did not appear. Instead, without informing VS., Jaconi entered a written appearance and a plea of not guilty on VS.'s and J.B.'s behalf. Both J.B. and VS. personally appeared at that January 22 hearing. After that hearing, VS. left over 30 telephone messages for Jaconi but received no response from him.

¶ 38. On February 20, 2002, VS. filed a grievance with the OLR complaining about Jaconi's failure to respond to his repeated inquiries. It was only after VS. received a copy of Jaconi's response to that grievance that VS. discovered that a trial date in the ordinance matter had been set for June 21, 2002. Jaconi appeared at that June 21 court trial but neither VS. nor J.B. had been contacted by Jaconi prior to that trial.

¶ 39. Based on admitted course of conduct regarding his representation of VS. and J.B., the OLR complaint charged Jaconi with an additional two counts of professional misconduct, to which he now stipulates:

COUNT NINETEEN: By failing to appear on the plea date when he had not informed his clients that he did not intend to appear, and by failing to contact his clients prior to June 21,2002 to prepare for trial, Jaconi failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
COUNT TWENTY: By failing to return VS.'s telephone calls, by failing to have any contact with his clients, either written or oral between January 8, 2002 and the trial on June 21, 2002, Jaconi failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

¶ 40. As noted, Jaconi has now stipulated to these 20 counts of misconduct as alleged by the OLR in its complaint. He admits the facts and the misconduct and agrees that a one-year suspension of his licensé to practice law in this state is an appropriate sanction for that misconduct. He also agrees with the OLR that he should be ordered to refund $500 to T.O., $175 to J.Y., and $200 to J.Y.'s friend who paid that amount to Jaconi as part of the flat fee in the J.Y. matter.

¶ 41. We approve the stipulation and determine that the seriousness of Jaconi's misconduct warrants a suspension of his license to practice law in this state for one year. Jaconi's admitted acts are serious violations of the Rules of Professional Conduct governing lawyers in this state. We also agree that Jaconi should make the refunds in the stipulated amounts.

¶ 42. IT IS ORDERED that the license of Jevon Jones Jaconi to practice law in Wisconsin is suspended for a period of one year, effective the date of this order.

¶ 43. IT IS FURTHER ORDERED that Jevon Jones Jaconi comply with the provisions of SCR 22.26 regarding the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 44. IT IS FURTHER ORDERED that within 60 days of the date of this order Jevon Jones Jaconi shall make refunds in the amounts and to the persons as stipulated. If those refunds are not paid within 60 days, and absent a showing to this court of his inability to make such refunds within that time, the license of Jevon Jones Jaconi to practice law in Wisconsin shall remain suspended until further order of this court.


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

      No. 02-2239-D.

      Decided November 12, 2003.

    2003 WI 141
    (Also reported in 671 N.W.2d 8.)
   PER CURIAM.

¶ 1. We review the referee's recommendation that Attorney Kevin Kelsay receive a public reprimand for professional misconduct. We conclude that a public reprimand is insufficient to address the seriousness of Attorney Kelsay's professional misconduct, and we hereby suspend Attorney Kelsay's license to practice law in Wisconsin for a period of six months. We agree that Attorney Kelsay should be required to pay the costs of the proceeding.

¶ 2. Attorney Kelsay was admitted to practice law in Wisconsin in 1984. His license to practice law in Wisconsin is presently under suspension. In October 1991 Attorney Kelsay consented to the imposition of a private reprimand for misconduct consisting of requesting and receiving a loan from a client without fully advising the client of the differing interests of the client and Attorney Kelsay and without taking appropriate steps to protect the client's interests, and for neglecting to pursue the client's claims; failing to keep the client informed; failing to respond to the client's requests for information; and failing to promptly return the client's papers or file to her.

¶ 3. On June 4, 1990, this court suspended Attorney Kelsay's license for a period of three years for misconduct, including failure to deposit client funds into a trust account; neglect of. numerous client matters; misrepresentations to clients regarding actions taken on their behalf; failure to return client files and unearned fees; failure to communicate with clients; failure to promptly pay funds as directed by a client; conversion of client funds to his own use; and repeated failure to respond to the Board of Attorneys Professional Responsibility in its investigation of client grievances, including the failure to produce trust account records, files and other requested material. In re Disciplinary Proceedings Against Kelsay, 155 Wis. 2d 480, 455 N.W.2d 871 (1990). To date Attorney Kelsay's law license has not been reinstated. He filed a petition for reinstatement on June 3, 2002, which is being held in abeyance pending resolution of this matter.

¶ 4. On August 23, 2002, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Kelsay alleging he had engaged in the practice of law while his license was under suspension, in violation of SCR 20:5.5(a) and SCR 22.26(2), by providing legal services to Andris Stradins (Stradins), an acquaintance of Attorney Kelsay.

¶ 5. The complaint alleged and the referee subsequently found that in October 1993, Stradins was injured in an automobile accident while driving a truck owned by his employer. After the accident Stradins contacted Attorney Kelsay to obtain his advice and a referral for an attorney. Attorney Kelsay told Stradins that he could handle the matter for less than half the fee of an attorney. Stradins agreed to allow Attorney Kelsay to represent him.

¶ 6. Attorney Kelsay told Stradins not to tell anyone he was working on Stradins' behalf because it was illegal for him to practice law. He also advised Stradins to inform the insurance claims adjuster that Stradins would only communicate with the insurance adjuster in writing. In this way, Attorney Kelsay was able to monitor and manage Stradins' claim without communicating with the insurance company directly.

¶ 7. Between December 1993 and December 1995 Attorney Kelsay drafted most, if not all, of the letters Stradins sent to the insurance company, which involved making and negotiating settlement offers. In December 1995 the insurance company offered to settle Stradins' claim for $40,000. On or about December 19, 1995, Stradins went to the insurance company's office accompanied by Attorney Kelsay, who reviewed the settlement documents before advising Stradins to sign them.

¶ 8. After receiving his settlement proceeds Stra-dins paid Attorney Kelsay approximately $5000 for the legal work he had performed.

¶ 9. Attorney Kelsay also assisted Stradins with the filing of a Worker's Compensation claim. He drafted letters to the Worker's Compensation insurance carrier on Stradins' behalf. In return for this assistance Stra-dins paid Attorney Kelsay 10 percent of his Worker's Compensation payments, approximately $65 per month, except for a short period of time when Stadins only received a partial monthly payment.

¶ 10. The complaint filed by the OLR alleged that by practicing law while his license was suspended Attorney Kelsay engaged in the unauthorized practice of law, in violation of SCR 20:5.5(a) and that Attorney Kelsay practiced law or engaged in improper law work activity while his license was suspended, in violation of SCR 22.26(2).

¶ 11. On September 12, 2002, the OLR and Attorney Kelsay requested this court approve the terms of a stipulation filed pursuant to SCR 22.12(1), whereby Attorney Kelsay would be publicly reprimanded for the misconduct alleged in the complaint. However, the stipulation advised the court that Referee Daniel Stangle, who was appointed pursuant to SCR 22.09, had rejected the proposed discipline as inadequate.

¶ 12. Referee Stangle opined that the proposed sanction fell outside the range of sanctions usually imposed for similar cases. Citing to several published cases as well as the ABA Standards for Imposing Lawyer Sanctions, § 8: Prior Discipline Orders (1991 ed., as amended in Feb. 1992), the referee stated:

[I]t seems inconceivable to me that a mere Public Reprimand would accomplish the Court's stated objectives in the lawyer disciplinary system of protecting the public, the courts or the legal profession from further misconduct by Attorney Kelsay, how it would aid in his rehabilitation, and certainly how this would possibly deter others. Rather, the message sent seems to me to be more one of do whatever you want, the worst that happens is the system says "don't do it any more"— particularly where the system already had sent the same message previously.

Attorney Kelsay filed a motion for reconsideration and the OLR sent a letter to the referee, defending its position. Referee Stangle declined to alter his initial determination and the OLR and Attorney Kelsay requested this court approve the stipulation notwithstanding the referee's position.

¶ 13. The court issued an order to show cause, directing both the OLR and Attorney Kelsay to explain why this court should accept the terms of the proposed stipulation. The parties responded to this court's order to show cause, maintaining that a public reprimand was appropriate discipline for Attorney Kelsay's misconduct.

¶ 14. This court was not persuaded. By order dated December 12, 2002, we rejected the stipulation submitted by the parties and, consistent with SCR 22.12(3), directed the matter proceed before a referee.

¶ 15. On May 22, 2003, Referee Charles Herró issued a report and recommendation concluding that Attorney Kelsay did violate SCR 20:5.5(a) and SCR 22.26(2) as set forth in the stipulation of the parties. He agreed that a public reprimand was appropriate discipline for the misconduct at issue in this matter.

¶ 16. We adopt the referee's factual findings and conclusions of law but we are of the opinion that a public reprimand is inadequate discipline for Attorney Kelsay's misconduct. We conclude that the seriousness of Attorney Kelsay's misconduct warrants the suspension of his license to practice law in Wisconsin for a period of six months. We agree that Attorney Kelsay should be ordered to pay the costs of the OLR proceeding.

¶ 17. IT IS ORDERED that the license of Attorney Kevin Kelsay to practice law in Wisconsin is suspended for a period of six months, effective .the date of this order.

¶ 18. IT IS FURTHER ORDERED that this suspension does not affect the existing suspension.

¶ 19. IT IS FURTHER ORDERED that Attorney Kevin Kelsay shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following suspension.

¶ 20. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Kevin Kelsay pay to the Office of Lawyer Regulation the costs of this proceeding.

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

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

       The record reflects that on June 13, 2003, Attorney Kelsay filed an objection to the statement of costs filed by the OLR. The OLR provided an itemization of its costs on June 17, 2003. The record does not reflect any specific objections to the costs assessed by the OLR and Attorney Kelsay's objection to the statement of costs is rejected. '


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    State of Wisconsin, Plaintiff, v. Hydrite Chemical Company a/k/a Avganic Industries, Inc., Defendant-Third-Party Plaintiff-Appellant,-Cross-Respondent v. Travelers Casualty & Surety Company f/k/a Aetna Casualty & Surety Company, American Casualty Company of Reading, PA, Chicago Insurance Company, Continental Casualty Company, First State Insurance Company and First State Underwriters Agency of New England Reinsurance Corp. a/k/a New England Reinsurance Corp., Granite State Insurance Company, Great American Surplus Lines Ins. Co. a/k/a American Empire Surplus Lines Ins. Co., International Surplus Alliance Insurance Co. a/k/a International Insurance Co., Certain Underwriters at Lloyds of London a/k/a Certain London Insurers, and Affiliated FM Insurance Company, Third-Party Defendants, American Motorists Insurance Company, Home Indemnity Company and Home Insurance Company, Northbrook Excess & Surplus Insurance Company, as predecessor to Allstate Insurance Company, and United States Fire Insurance Co., Third-Party Defendants-Respondents,-Cross-Appelants Interstate Fire and Casualty Company, Fourth-Party Plaintiff, v. Maryland Casualty Company, Fourth-Party Defendant. State of Wisconsin, Plaintiff, v. Hydrite Chemical Company a/k/a Avganic Industries, Inc., Defendant-Third-Party Plaintiff-Appellant, v. Travelers Casualty & Surety Company f/k/a Aetna Casualty & Surety Company, American Casualty Company of Reading, PA, Chicago Insurance Company, Continental Casualty Company, First State Insurance Company and First State Underwriters Agency of New England Reinsurance Corp. a/k/a New England Reinsurance Corp., Granite State Insurance Company, Great American Surplus Lines Ins. Co. a/k/a American Empire Surplus Lines Ins. Co., International Surplus Alliance Insurance Co. a/k/a International Insurance Co., Certain Underwriters at Lloyds of London a/k/a Certain London Insurers, and Affiliated FM Insurance Company, Third-Party Defendants, American Motorists Insurance Company, Home Indemnity Company and Home Insurance Company, Northbrook Excess & Surplus Insurance Company, as predecessor to Allstate Insurance Company, and United States Fire Insurance Co., Third-Party Defendants-Respondents, Interstate Fire and Casualty Company, Fourth-Party Plaintiff, v. Maryland Casualty Company, Fourth-Party Defendant.
    Supreme Court

      Nos. 00-3344, 01-0580.

      Decided November 17, 2003.

    2003 WI 147
    (Also reported in 673 N.W.2d 675.)
   The Court entered the following order on this date: A petition for review pursuant to Wis. Stat. § 808.10 having been filed on behalf of defendant-third-party plaintiff-appellant-petitioner, Hydrite Chemical Company, and a motion to abate and/or enjoin appeal having been filed by third-party defendants-respondents-cross-appellants, Home Insurance Company and Home Indemnity Company, due to the fact that the New Hampshire insurance department issued an order of liquidation for Home on June 13, 2003, and considered by this court;

IT IS ORDERED that the petition for review is granted, the court of appeals' decision is summarily vacated and the matter is remanded to the court of appeals for further consideration in light of this court's decision in Johnson Controls, Inc. v. Employers Insurance of Wausau, 2003 WI 108, 264 Wis. 2d 60, 665 N.W.2d 257;

In light of the remand to the court of appeals,

IT IS FURTHER ORDERED that the motion to abate and/or enjoin appeal is denied. Third-party defendants-respondents-cross appellants may, if they wish, renew their motion in the court of appeals.

Wilcox, J., did not participate.


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    In the Matter of Disciplinary Proceedings Against William D. Whitnall, Attorney at Law: Office of Lawyer Regulation, Complainant, v. William D. Whitnall, Respondent.
    Supreme Court

      No. 03-2535-D.

      Decided November 17, 2003.

    2003 WI 146
    (Also reported in 673 N.W.2d 674.)
   The Court entered the following order on this date:

Attorney William D. Whitnall has filed a petition for consensual license revocation pursuant to SCR 22.19(3). Whitnall was admitted to practice law in 1968 but his license has been under suspension since November 22, 1999 and he has not been reinstated. Disciplinary Proceedings Against Whitnall, 2000 WI 131, 239 Wis. 2d 721, 619 N.W.2d 926.

The Office of Lawyer Regulation (OLR) is currently investigating Whitnall concerning allegations of misconduct in his representation of two different clients. In those matters, the Preliminary Review Committee has found cause to proceed agáinst Whitnall with respect to six professional misconduct rule violations including:

OLR File No. 99-081110 — failing to act with reasonable diligence and promptness in representing a client in violation of SCR 20:1.3; failing to inform a client of an offer of settlement and to abide by his client's decision whether to accept an offer of settlement in violation of SCR 20:1.2(a); failing to surrender papers and property to which his client was entitled in violation of SCR 20:1.16(d).

OLR File No. 01-091117 — failing to file a lawsuit or settle a client's claim within the statute of limitations thereby failing to act with reasonable diligence and promptness in representing a client in violation of SCR 20:1.3; failing to respond to a client's inquiries regarding the status of her lawsuit thereby failing to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information in violation of SCR 20:1.4(a); and failing to inform his client of the applicable statute of limitations so the client could make an informed decision about retaining other counsel prior to the expiration of the statute of limitations period, thereby failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation in violation of SCR 20:1.4(b).

In his petition, Attorney Whitnall acknowledges that he cannot successfully defend against the pending allegations.

OLR has responded to Whitnall's petition for consensual license revocation and recommends that the petition be granted. Accordingly,

IT IS ORDERED Attorney William D. Whitnall's petition for consensual license revocation is granted and his license to practice law in this state is revoked as of the date of this order.

IT IS FURTHER ORDERED that to the extent that he has already not done so, William D. Whitnall must comply with SCR 22.26 relating to activities following license revocation.