author: HOOVER, PJ.

text:
    State of Wisconsin ex rel. Patrick Heil, Plaintiff-Respondent, v. Green Bay Police and Fire Commission, Defendant-Appellant.  [Case No. 01-1781.] In the Matter of Charges Filed Against Patrick Heil by Police Chief James Lewis: Patrick Heil, Petitioner-Respondent, v. Green Bay Police and Fire Commission, Respondent-Appellant. [Case No. 01-3002.]
    Court of Appeals

      Nos. 01-1781, 01-3002.

      Submitted on briefs May 13, 2002.

      Decided July 2, 2002.

    2002 WI App 228
    (Also reported in 652 N.W.2d 118.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Scott Herrick and Herrick, Kasdorf Dymzarov & Twietmeyer of Green Bay.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas J. Parins and Parins Law Firm, S.C. of Green Bay.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 10-1-02.

   HOOVER, PJ.

¶ 1. The Green Bay Police and Fire Commission (PFC) appeals trial court orders remanding its decision terminating Green Bay Police Department officer Patrick Heil. The PFC argues: (1) the trial court was required to determine whether there was just cause under Wis. Stat. § 62.l3(5)(i) before considering legal arguments raised in a writ of certio-rari; (2) its practice of allowing the non-voting presence of a common council representative is proper; (3) any error caused by the representative's presence did not invalidate the proceedings; and (4) on certiorari review, the trial court improperly supplemented the record of the PFC's decision by allowing the representative's deposition and adding it to the record. We conclude that statutory and certiorari reviews are discrete procedures and one need not be decided before the other. In addition, we determined that the representative's presence tainted the PFC's decision and the decision is therefore void. Accordingly, we affirm the orders.

BACKGROUND

¶ 2. Police chief James Lewis brought numerous charges against Heil before the PFC, which conducted hearings on the charges. The City of Green Bay follows the practice of maintaining a liaison position between the PFC and the common council. Anthony Theisen was the mayor-appointed liaison at the time the PFC heard and decided the charges against Heil. He was present throughout most of the hearings and sat in on the PFC's deliberations. Theisen participated fully except that he did not vote or sign the decision. The PFC described Theisen as a "non-voting observer and resource" who "participated in the deliberative process."

¶ 3. After hearings and deliberations, the PFC discharged Heil. Heil pursued a statutory appeal of the PFC decision, pursuant to Wis. Stat. § 62.13(5)(i), and a common-law certiorari review of legal issues relating to the PFC's actions.

¶ 4. The trial court had both matters before it. It decided that Theisen sitting with the PFC at the hearing and deliberation sessions, even as a non-voting observer, tainted the proceedings and the commission's decision. The court held:

It is of no consequence whether or not Anthony R. Theisen was influential in, or had any effect upon the voting members' ultimate determinations. It is sufficient to contaminate the conclusions of the commission by the mere participation of Anthony R. Theisen in the deliberative process. Participation, in this sense, need not mean taking an active role in the discussion, but simply being present during the executive decision making sessions.

The court decided that Heil "had a fundamental due process right to have his case deliberated and decided upon without the involvement of an outsider...." It found that Theisen's involvement constitutionally tainted and contaminated the PFC's decision. The court remanded the record to the PFC for proceedings consistent with its decision. After hearing argument over what the court's decision required, the court issued a judgment that "vacated and set aside" the PFC decision and remanded both appeals to the PFC for further proceedings consistent with its decision.

¶ 5. The PFC concluded that the court was concerned primarily with Theisen's presence and deliberated again without him, affirming its earlier decision. The court conducted a hearing on June 22, 2001, and. clarified what it intended when it vacated the PFC's order. The court reiterated that the process with Theisen in attendance was flawed and that it had vacated the entire process as a result. It said, "And if there is to be discipline imposed, it has to be on the basis of a fresh hearing and deliberation based on those facts rather than something that happened before." This order was later reduced to writing.

STANDARD OF REVIEW

¶ 6. All issues presented raise questions of law that we review de novo without deference to the trial court. See State ex rel. Reedy v. Law Enforce. Discip. Comm., 156 Wis. 2d 600, 606, 457 N.W.2d 505 (Ct. App. 1990).

Discussion

I. Statutory Appeal and Certiorari Review '

¶ 7. There are two avenues available to appeal PFC decisions, statutory review pursuant to Wis. Stat. § 62.13(5)(i) and review by writ of certiorari. Under § 62.13(5)(i), any person subject to a PFC decision may appeal to the trial court within ten days. The court then determines, upon the evidence in the administrative record, whether there is just cause to sustain the charges against the accused. Id.

¶ 8. An accused may also file a writ of certiorari to review legal defects in the administrative record for which there is no statutory judicial review. State v. Goulette, 65 Wis. 2d 207, 214, 222 N.W.2d 622 (1974). On certiorari review, the court

is limited to determining: (1) Whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.

Id. at 215. Here, Heil properly filed both. See State ex rel. Enk v. Mentkowski, 76 Wis. 2d 565, 571, 252 N.W.2d 28 (1977).

¶ 9. The PFC argues that under Wis. Stat. § 62.13(5)(i), the scope of the appeal process is considerably broader than under the previous statute. It contends that § 62.13(5)(i) does not allow the trial court to give precedence to the certiorari review and decide certiorari legal issues before determining just cause. The PFC contends that most of the issues formerly under certiorari review are now reviewable as part of the statutory appeal.

¶ 10. Even if it is true that the appeal process covers a broader range of issues, it does not necessarily, nor even logically, follow that the statutory appeal takes "precedence" over certiorari review, as the PFC contends. Nor is there any language in Wis. Stat. § 62.13(5)(i) suggesting appeal priority. For example, § 62.13(5)00 does not say that the trial court must address "just cause" before undertaking a certiorari review. The amendments to the statutory procedure notwithstanding, statutory appeal and certiorari review are discrete procedures for obtaining judicial review of the PFC's decision. The trial court may address them in whatever order it deems prudent.

¶ 11. We also conclude that the trial court should not be confined to determine just cause on a tainted proceeding. Here, the court considered legal issues raised by Heil's writ of certiorari before it determined just cause under the statutory appeal. The court found error, Theisen's presence tainting the proceedings, as part of the certiorari review. It declined to conduct the "just cause" analysis mandated under statutory review until the defect in process had been remedied, and remanded to the PFC.

¶ 12. The PFC obliquely concedes that the trial court should not have to determine just cause on a tainted proceeding when it argues that, in its view, under the new appeal process, the trial court has the last word on just cause: "No inadequacy of a PFC decision is legally relevant which does not obstruct that last word of the Circuit Court." (Emphasis added). However, a defect in process depriving Heil of adjudication by an independent body does obstruct the last word by the trial court. Heil is entitled to an untainted process before the court determines whether just cause supports the charges against him.

II. PFC Liaison

¶ 13. The PFC argues that Theisen's mere presence was a formal error, and that the trial court did not find actual prejudice, influence or impropriety. We conclude, however, that Theisen's mere presence was enough to taint the entire proceedings, including the record and decision. We perceive that the practice of having a common council liaison to the PFC is not a reasonable local adaptation of the statute, as the PFC argues. While Theisen's presence may not infringe on the statutory authority of the five PFC members, it does infringe on Heil's right to due process, his right to be judged by an impartial board.

¶ 14. The PFC is composed of an impartial body that operates independently of the city itself. Eau Claire County v. General Teamsters Union Local No. 662, 228 Wis. 2d 640, 650, 599 N.W.2d 423 (Ct. App. 1999). By statute, the PFC is to be comprised of five, not six, citizen members who have no direct interest in the outcome of the case, as would a party to the dispute. Wis. Stat. § 62.13(1); General Teamsters, 228 Wis. 2d at 650. Member appointment is designed to prevent the board from operating as an agent of a city official or police or fire chief. General Teamsters, 228 Wis. 2d at 650.

¶ 15. In Cramer v. Stone, 38 Wis. 259 (1875), the Wisconsin Supreme Court discussed the ramifications of the presence of an extra person in deliberations. "Where a particular power or duty is delegated to a select body, that body must perform the duty or exercise the power, and if others, who have no right to act, join in its performance, the act will be void." Id.

¶ 16. The PFC has been granted the power to decide charges brought against police officers. The statutes also mandate an independent board. General Teamsters, 228 Wis. 2d at 650. Theisen was the mayor's representative, and the police chief, another subordinate of the mayor, brought the charges against Heil. Theisen thus effectively was a representative of one of the parties. Yet, he sat with the PFC at the hearings and in the deliberations. This tainted the appearance of the PFC's independence. Moreover, although Theisen did not vote, he participated as a "resource" in deliberations. We conclude that these circumstances render the PFC's decision void. See id.

¶ 17. Theisen sitting with the panel, however, unquestionably and materially diminishes the appearance of the board's independence. Here, Theisen, the council member and panel "resource," was the mayor's representative on the panel. The mayor also supervises the police chief, who brought the proceedings against Heil. Thus, we have the prosecuting official's superior appointing his own representative to the panel, contrary to the statutory mandate for the composition of the panel. We agree with the trial court that under these circumstances, Theisen's mere presence, sitting as a non-voting panel member, gave a sufficient appearance of impropriety to taint the entire proceedings.

¶ 18. The PFC also argues that even if it erred by having Theisen at the hearings and in deliberations, that error did not invalidate the entire proceedings and record. However, as noted, Theisen's mere presence sufficiently tainted the proceedings to void their result.

III. Other Arguments

¶ 19. We need not address the PFC's argument regarding the trial court's discovery order because the court was concerned with the appearance of impropriety in the proceedings, not with what Theisen actually did. Therefore, Theisen's deposition is not necessary to determine that the PFC's process was tainted.

¶ 20. We also do not address the PFC's argument that we should determine whether it had just cause to support its decision. Because the trial court is not required to make a just cause determination based on the record of a tainted proceeding, a full rehearing is appropriate.

By the Court. — Orders affirmed.

       Wisconsin Stat. § 62.13(5)(i) provides, in relevant part:
      Any person suspended, reduced, suspended and reduced, or removed by the board may appeal from the order of the board to the circuit court by serving written notice of the appeal on the secretary of the board within 10 days after the order is filed... . The question to be determined by the court shall be: Upon theevidence is there just cause, as described under par. (em), to sustain the charges against the accused?
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       While there are two orders vacating the two PFC decisions and remanding to the PFC, the effect of the second order is to clarify the first order. The notice of appeal filed after the first order effectively places both orders before this court. Wis. Stat. § 808.04(8).

       The statute providing for appeal from PFC decisions was amended in 1993. This decision interprets the newer version of Wis. Stat. § 62.13(5)(i).

       Heil asserts this relationship and the PFC does not dispute it.

       The PFC focuses on what it claims was the trial court's perception of the inadequacy of the PFC's decision. However, the court was concerned with the "inadequacy" of the process before the PFC, not the decision itself.


source: Caselaw Access Project

author: WEDEMEYER, PJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Cornelius R. Reed, Defendant-Appellant.

    Court of Appeals

      No. 01-2973-CR.

      Submitted on briefs June 4, 2002.

    Decided July 2, 2002.

    2002 WI App 209
    (Also reported in 650 N.W.2d 885.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephanie G. Rapkin of Mequon.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general by Jeffrey J. Kassel, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review denied 9-26-02.

   WEDEMEYER, PJ.

¶ 1. Cornelius R. Reed appeals from a judgment entered after a jury convicted him of operating a vehicle without the owner's consent as party to a crime, and possession of a firearm by a felon as party to a crime (and as a habitual criminal), contrary to Wis. Stat. §§ 943.23(lg), 941.29(2), 939.05 and 939.62 (1999-2000). He also appeals from an order denying his postconviction motion. Reed claims: (1) the trial court erred and violated his due process rights when it denied his request to have two defense witnesses, who were in custody at the time of trial, appear in street clothes when they testified; (2) trial counsel provided ineffective assistance for failing to request a cautionary instruction related to the witnesses appearing in jail attire; and (3) the trial court erred when it did not give a cautionary instruction to the jury about the witnesses appearing in jail attire. Because the trial court did not erroneously exercise its discretion when it denied Reed's request to have his witnesses appear in street clothes, and because he failed to demonstrate prejudice on his ineffective assistance of counsel claim and on the trial court's failure to give a cautionary instruction, we affirm.

I. BACKGROUND

¶ 2. On March 19, 2000, at 5115 West Capitol Drive in Milwaukee, Wisconsin, London Hickman told police that, as she was returning to her car, two men approached her, one of whom was later identified as Reed. Reed flashed a silver-colored handgun and demanded that she give him her money and the car keys to her 1998 Lincoln Navigator. When she did so, the men stole her vehicle and drove away.

¶ 3. Approximately thirty minutes later, police located the Navigator. Reed, who was driving, abandoned the vehicle and fled from police. A police officer observed Reed drop a silver pistol on the sidewalk, which was later recovered. They also observed Reed discard a White Sox jacket as he was running. The jacket was recovered and Hickman positively identified the jacket as the one the car thief was wearing when he took her car. Police eventually captured Reed, and Hickman positively identified him as the car thief. As a result, Reed was charged with operating a vehicle without the owner's consent, while possessing a dangerous weapon as party to a crime, and possession of a firearm by a felon as party to a crime. Both charges carried the habitual criminality penalty enhancer.

¶ 4. Reed pled not guilty and the case was tried to a jury. Before trial, Reed filed notice of his intent to present an alibi defense. His theory was that a man named "BoBo" actually stole the car from Hickman and then rented it to Reed minutes later, He had three witnesses to present his alibi. The first was Keith Payne, who testified that he saw the carjacking occur, and Reed was not the person who stole the car. The second was Patrick Neeley, who testified that he was a passenger in the stolen vehicle when it was stopped by police. He told the jury that he was walking down the street when BoBo pulled up in a Navigator and asked him if he needed a ride. Neeley got into the back seat because there was another man in the front passenger seat. BoBo drove to 45th Street and Lisbon Avenue, where they encountered Reed. BoBo offered to rent the vehicle to Reed for $40, and Reed accepted. BoBo and the man in the front passenger seat exited the vehicle; Reed got into the driver's seat and Neeley got into the front passenger seat. They drove around for a short while and then were pulled over by police. The third witness was Latare Roberts, who testified that BoBo drove up to him in a Navigator and asked him if he wanted to rent the car. Roberts testified that he refused, and he then saw BoBo approach Reed with the same offer.

¶ 5. Neeley and Roberts were in custody at the time of the trial, and the defense requested that they be allowed to change into street clothes when they testified. Reed argued that the jury might find the witnesses less credible if they testified in their jail clothes. The trial court denied the request, ruling that it would be inconvenient and create a security risk. At the time of the ruling, the trial court suggested that a limiting instruction could be given with regard to the jail attire. However, at the time the instructions were drafted, the trial court determined that the issue did not "merit[] any further attention from the jury." Reed was convicted. He filed a postconviction motion, which was denied. He now appeals.

II. DISCUSSION

A. Witnesses in Jail Clothes.

¶ 6. The main issue in this case is whether the trial court erred by denying Reed's request to allow two of his alibi witnesses, who were in custody at the time, to change into street clothes instead of having to testify in their jail attire. Although there is no Wisconsin case law that directly addresses the issue, we are guided by one case decided by this court, wherein we noted the consensus among appellate courts is that this issue is one best left to the discretion of the trial court. State v. Brewer, 195 Wis. 2d 295, 301-02 n.2, 536 N.W.2d 406 (Ct. App. 1995).

¶ 7. Accordingly, we conclude that the trial court's decision will be reviewed under the erroneous exercise of discretion standard. If the trial court applied the correct law, after considering the pertinent facts and reaching a reasonable decision, we will not overturn the decision. State v. Delgado, 223 Wis. 2d 270, 280-81, 588 N.W.2d 1 (1999).

¶ 8. In reviewing the trial court's decision, we conclude that it did not erroneously exercise its discretion in denying Reed's request. The trial court denied the request because of the difficulty associated with having the in-custody witnesses brought to the courtroom, but keeping them in separate bullpens to keep them apart. Granting the clothing request would have entailed having the witnesses change clothes in the bullpens, where other in-custody people were waiting. Introducing those items into the bullpens, and allowing the clothing changes would create security risks that outweighed any prejudice to the defendant. The trial court also reasoned that because both of the witnesses had prior convictions which the jury would hear about, seeing them in jail attire would not be overly prejudicial.

¶ 9. The trial court further explained its exercise of discretion and balancing of factors in its written order denying the postconviction motion. After reviewing the bulk of the law on this issue across the country, the trial court reached three general conclusions. First, the case law makes an important distinction between compelling a defendant to testify in jail attire and compelling a witness to testify in jail attire. The reason for the distinction is that a defendant has certain constitutional rights and is presumed innocent until proven guilty. "[A] state violates a defendant's right to due process, and therefore the presumption of innocence, when it requires him to appear at trial in identifiable prison clothing." State v. Clifton, 150 Wis. 2d 673, 679, 443 N.W.2d 26 (Ct. App. 1989) (citation omitted). Defense witnesses, however, do not share the same "presumption of innocence." Therefore, courts are inclined to allow an "in-custody" defendant to appear in street clothes, and yet not provide the same accommodation to "in-custody" witnesses. See, e.g., Harrell v. Israel, 672 F.2d 632, 635 (7th Cir. 1982); State ex rel. McMannis v. Mohn, 254 S.E.2d 805, 808-09 (W. Va. 1979).

¶ 10. The second conclusion noted by the trial court is the distinction made between compelling a witness to testify in jail attire versus compelling a witness to testify in shackles, handcuffs, or other restraints. Courts are more concerned about the prejudice that arises from the latter rather than the former. McMannis, 254 S.E.2d at 809-10. The reason is that physical restraints raise a specter of dangerousness and may have a more significant effect on the jury's feelings than mere jail attire. Illinois v. Allen, 397 U.S. 337, 344 (1970). Moreover, jail attire says little more than what we already permit juries to know about witnesses— whether the witness has been convicted of a crime.

¶ 11. The third conclusion reached by the trial court is that viewing a witness in jail attire is not prejudicial where the jury is permitted to hear testimony that the person has been incarcerated. United States v. Brooks, 125 F.3d 484, 499 (7th Cir. 1997). The theory is that "[n]o prejudice can result from seeing that which is already known." Estelle v. Williams, 425 U.S. 501, 507 (1976) (citation omitted).

¶ 12. The trial court reasoned, based on the foregoing, that its decision to compel the alibi witnesses to testify in jail attire was a reasonable one, particularly given the security concerns and the fact that one of the witnesses was currently incarcerated on a conviction related to the case, and the other had been incarcerated before. We agree that the trial court's decision was reasonable based on the totality of facts and circumstances presented in this case. The trial court properly balanced the potential prejudice to the defendant against the security considerations.

B. Ineffective Assistance.

¶ 13. Reed next contends his trial counsel was ineffective for failing to request a cautionary instruction relating to the clothing worn by the defense alibi witnesses. We reject his contention.

¶ 14. To sustain a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that counsel's errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). A court need not address both components of this inquiry if the defendant does not make a sufficient showing on one. Id. at 697.

¶ 15. An attorney's performance is not deficient unless he or she made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. To satisfy the prejudice prong, the appellant must demonstrate that counsel's deficient performance was "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.

¶ 16. Whether counsel's actions constituted ineffective assistance is a mixed question of law and fact. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). The trial court's determination of what the attorney did, or did not do, and the basis for the challenged conduct are factual and will be upheld unless they are clearly erroneous. Id. at 634. The ultimate conclusion, however, of whether the conduct resulted in a violation of defendant's right to effective assistance of counsel is a question of law for which no deference to the trial court need be given. State v. Harvey, 139 Wis. 2d 353, 376, 407 N.W.2d 235 (1987).

¶ 17. With respect to the "prejudice" component of the test for ineffective assistance of counsel, the defendant must affirmatively prove that the alleged defect in counsel's performance actually had an adverse effect on the defense. Strickland, 466 U.S. at 693. The defendant cannot meet his burden by merely showing that the error had some conceivable effect on the outcome. Id. Rather, he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

¶ 18. We dispose of this claim on the prejudice prong of the ineffective assistance test. Assuming that Reed's counsel should have requested a cautionary instruction, we conclude that Reed has failed to demonstrate that the result of the proceedings would have been different. Reed's position is that the jury probably assessed less credibility to his alibi witnesses because they testified in jail clothes. He argues that if the jury had been given a cautionary instruction on this issue, it would have afforded the witnesses more credibility and resulted in his acquittal. We cannot agree.

¶ 19. Even if a cautionary instruction had been given, there were credibility problems with the alibi witnesses. One was an admitted convicted criminal and the other told the jury that he had been "locked up" before. In addition, the testimony of the alibi witnesses was inconsistent. More significantly, there was other evidence in the case that overwhelmingly pointed to Reed's guilt that would have been unaffected by a cautionary instruction. The eyewitness-victim identified Reed as the car thief. She also identified the jacket Reed was wearing, which Reed took off and dropped as he was fleeing from the police. The fact that Reed fled from police when pulled over in the stolen vehicle supports an inference that he was guilty. Accordingly, even if counsel had requested the cautionary instruction and the trial court read the instruction to the jury, Reed has failed to demonstrate that there is a reasonable probability that the outcome would have been different.

C. Trial Court Failure to Give Cautionary Instruction.

¶ 20. Reed next argues that the trial court should have given a cautionary instruction. He points out that the trial court raised the issue and indicated it would give the limiting instruction, but then failed to do so. We reject this claim.

¶ 21. Like the ineffective assistance claim, even if Reed convinced us that a cautionary instruction should have been given, we conclude that the failure to so charge the jury was harmless error. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985).

¶ 22. Given the other credibility problems associated with these witnesses, plus the strength of the evidence pointing to Reed's guilt, there is no reason to believe that an instruction directing the jurors to disregard the jail clothing would have had any impact on the outcome of this case. As noted above, the witnesses had additional credibility problems aside from the clothing they were wearing. Likewise, Reed was linked to the crime not only by the victim's eyewitness identification, but also by the fact that he was caught driving the stolen vehicle shortly after the hijacking, wearing the same type of jacket as the car thief, and carrying the same type of pistol. Therefore, any failure to give a cautionary instruction was harmless.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.


author: PETERSON, J.

text:
    Village of Little Chute, Plaintiff-Respondent, v. Todd A. Walitalo, Defendant-Appellant.

    Court of Appeals

      No. 01-3060.

      Submitted on briefs June 7, 2002.

    Decided July 2, 2002.

    2002 WI App 211
    (Also reported in 650 N.W.2d 891.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph A. Kalal of Kalal & Associates, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Mark J. McGinnis, Appleton.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 9-26-02.

   PETERSON, J.

¶ 1. Todd Walitalo appeals his judgment of conviction for operating a motor vehicle while under the influence of an intoxicant, first offense, contrary to Wis. Stat. § 346.63(l)(a). Walitalo argues that his consent to submit to a blood test was coerced. He contends that the threatened sanction of a loss of driving privileges constitutes a coercive measure that invalidates his consent for Fourth Amendment purposes. See Wis. Stat. § 343.305. We disagree and affirm the conviction.

BACKGROUND

¶ 2. The following facts are stipulated. At approximately 2:14 a.m. on March 16, 2001, Walitalo was arrested for OWL The arresting officer read Walitalo the informing the accused form pursuant to Wis. Stat. § 343.305. Thereafter, Walitalo submitted to the drawing of a blood sample. The blood test revealed an alcohol concentration of .142%.

¶ 3. Walitalo moved to suppress evidence. He argued that his consent, through the implied consent law, was coerced. The trial court denied the motion. Walitalo was found guilty after a bench trial on the stipulated facts.

STANDARD OF REVIEW

¶ 4. When we review a motion to suppress evidence, we uphold the trial court's findings of fact unless they are clearly erroneous. State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996). However, the application of constitutional principles to those facts is a question of law that we decide without deference to the court's decision. State v. Patricia A.P., 195 Wis. 2d 855, 862, 537 N.W.2d 47 (Ct. App. 1995). Further, "the constitutional significance of the undisputed facts regarding the issue of consent must receive independent, appellate review." State v. Johnson, 177 Wis. 2d 224, 233, 501 N.W.2d 876 (Ct. App. 1993).

DISCUSSION

¶ 5. Under Wis. Stat. § 343.305, drivers in Wisconsin are deemed to have consented to the testing of their blood, breath or urine for alcohol concentration, and if a driver refuses to submit to a lawful request for testing, his or her driving privileges may be revoked. See Wis. Stat. §§ 343.305(2) and (10).

¶ 6. Walitalo argues that his consent to submit to a blood test was coerced. He contends that the threatened sanction of lost driving privileges constitutes a coercive measure that invalidates his consent for Fourth Amendment purposes. Walitalo does not allege that the arresting officer made any specific threats or applied coercion beyond what Walitalo claims arises under Wis. Stat. § 343.305.

¶ 7. Consent to a search is a well-settled exception to the Fourth Amendment requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). "[A] warrantless search conducted pursuant to consent which is 'freely and voluntarily given' does not violate the Fourth Amendment." State v. Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d 794 (1998) (citation omitted). "We independently apply constitutional principles to the facts as found to determine whether the standard of voluntariness has been met." State v. Xiong, 178 Wis. 2d 525, 531, 504 N.W.2d 428 (Ct. App. 1993).

¶ 8. To determine whether Walitalo voluntarily consented to the blood test, we engage in a two-step analysis. Phillips, 218 Wis. 2d at 196-97. First, we must determine whether Walitalo, in fact, consented to the blood draw. See id. Walitalo does not contest the fact that he consented to the blood draw; rather, he argues that the critical question is whether the police coerced that consent through use of the implied consent law. Therefore, we will proceed directly to the second step of the analysis.

¶ 9. The second step requires us to examine whether Walitalo's consent was voluntarily given. Id. at 197. The presence or absence of actual coercion or improper police practices is the focus of the inquiry because it is determinitive on the issue of whether the consent was the product of a "free and unconstrained will, reflecting deliberateness of choice." State v. Clappes, 136 Wis. 2d 222, 236, 401 N.W.2d 759 (1987) (citation omitted). The State bears the burden of proving by clear and convincing evidence that Walitalo's consent was voluntary. See Phillips, 218 Wis. 2d at 197.

¶ 10. It is undisputed that the arresting officer did not make any threats or apply any coercion beyond what Walitalo claims arises under Wis. Stat. § 343.305. According to Walitalo, the fact that he was forced to choose between the loss of his driving privileges and submission to a chemical test amounted to coercion.

¶ 11. However, the arresting officer, by reading the informing the accused form, simply stated the truth: If Walitalo refused to submit to a chemical test, his driving privileges would be revoked. This statement did not involve any deceit or trickery, but instead accurately informed Walitalo of his precise legal situation. See 3 Wayne R. LaFave, Search and Seizure, § 8.2(c) at 653-52 (3d ed. 1996). While police cannot use deceit or trickery, they are entitled to make true statements. Gautreaux v. State, 52 Wis. 2d 489, 494, 190 N.W.2d 542 (1971). Had Walitalo refused to submit to a blood test, he would have been subject to the penalties under Wis. Stat. § 343.305(10). Because there was no actual coercion or improper police conduct, we conclude that Walitalo's consent was voluntary.

By the Court. — Judgment affirmed.

       Originally assigned as a one-judge appeal, this case was reassigned to a three-judge panel on June 20, 2002. See Wis. Stat. Rule 809.41(3).

       Walitalo makes two additional arguments. First, he argues that a warrant was required to secure a blood sample because police could have utilized a breath test. Because we conclude that Walitalo's consent was voluntary, we do not address this argument. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).
      Second, Walitalo argues that the blood draw could not be lawfully analyzed without securing a warrant because his consent applied only to the draw. In State v. VanLaarhoven, 2001 WI App 275, ¶ 16, 248 Wis. 2d 881, 637 N.W.2d 411, we held that the examination of a blood sample seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a separate judicially authorized warrant.

       Walitalo's argument indirectly attacks the constitutionality of Wis. Stat. § 343.305. To that extent, we could decline to address it because the record does not reflect that Walitalo notified the attorney general. See Estate of Fessler v. William B. Tanner Co., 100 Wis. 2d 437, 441-44, 302 N.W.2d 414 (1981). However, because he affirmatively states that he is not attacking the statute's constitutionality, we address his argument as he frames it: Whether he was coerced into submitting to a blood test.

       The State argues that the burden was on Walitalo to establish the unconstitutionality of the implied consent law. However, Walitalo does not overtly challenge the constitutionality of the implied consent law. Instead, he argues that this is only a challenge to a search of his blood.


text:
    James Annoye and Sandra Annoye, Plaintiffs-Appellants, v. Sister Bay Resort Condominium Association, Inc., Defendant-Respondent.
    Court of Appeals

      No. 02-0477-FT.

      Submitted on briefs June 4, 2002.

    Decided July 2, 2002.

    2002 WI App 218
    (Also reported in 652 N.W.2d 653.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Philip J. Danen and Tina M. Dahle of Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay.
    On behalf of the defendant-respondent, the cause was submitted on the brief of John P. Brady of Weiss Berzowski Brady LLP, Delafield.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. James and Sandra Annoye appeal an order dismissing their claim for declaratory relief against the Sister Bay Resort Condominium Association. The Annoyes sought a declaration that the merging of Sister Bay Resort Condominium with the Yacht Club at Sister Bay Resort Condominium was unlawful. The circuit court granted the Association's motion to dismiss because it concluded that the Association was not a proper party to the action and that the Annoyes therefore failed to state a claim upon which relief could be granted.

¶ 2. We conclude that under Wis. Stat. § 806.04(11), the Association was an interested party and, therefore, is a proper party to the action. We also conclude that under § 806.04(11), the individual unit owners are necessary parties to the action. Therefore, we reverse the order and remand with directions to allow the Annoyes to amend their complaint to include the individual unit owners.

BACKGROUND

¶ 3. The Sister Bay Resort Condominium Association was created in 1985. In April 2000, the Annoyes purchased unit number 532 of the Sister Bay Resort Condominiums.

¶ 4. On August 1, 2001, the unit owners entered into a merger agreement with the Yacht Club at Sister Bay Condominium. See Wis. Stat. § 703.275(4). The Annoyes were one of five unit owners who did not approve the merger agreement.

¶ 5. On September 26, 2001, the Annoyes filed a complaint against the Sister Bay Resort Condominium Association, seeking a declaratory judgment that the condominium merger violated Wis. Stat. §§ 703.13 and 703.26. The Annoyes claimed that the percentage of their undivided interest in the condominium could not be changed without unanimous written consent of all the unit owners. See Wis. Stat. § 703.13(4). According to the Annoyes, the only exception to this rule was in the case of expandable condominiums under § 703.26.

¶ 6. Under Wis. Stat. § 703.26(2)(d), the right to expand the condominium must be exercised within ten years of the date of the recording the original condominium declaration. Accordingly, the Annoyes claimed the right to expand the Sister Bay Resort Condominium expired in 1995. Therefore, the Annoyes concluded that their undivided interest in the condominium cannot legally change without unanimous consent of all of the unit owners.

¶ 7. The Association moved to dismiss the complaint and argued that the individual unit owners, not the Association, were the proper parties to this action. The circuit court granted the Association's motion and dismissed the Annoyes' complaint. The court held that the Association did not have any interest that would be affected by a declaratory judgment and that the proper parties were the individual unit owners. The court therefore concluded that the Annoyes failed to state a claim upon which relief could be granted.

STANDARD OF REVIEW

¶ 8. We independently review the circuit court's dismissal of the Annoyes' suit for failure to state a claim. See Evers v. Sullivan, 2000 WI App 144, ¶ 5, 237 Wis. 2d 759, 615 N.W.2d 680.

DISCUSSION

¶ 9. The Annoyes argue that the Association is an interested party and, therefore, a proper party under Wis. Stat. § 806.04(11). We agree.

¶ 10. Wisconsin Stat. § 806.04(11) requires that "all persons... who have or claim any interest which would be affected by the declaration" be joined in an action for declaratory relief. (Emphasis added.) The purpose of the statute "is to make it certain that the declaration will terminate the controversy .. . ." Lozoff v. Kaisershot, 11 Wis. 2d 485, 491, 105 N.W.2d 783 (1960).

¶ 11. The Association argues that because it does not have a property interest in the condominium, it is not a proper party to this action under § 841.01(1). It is true that § 841.01(1) does permit "Any person claiming an interest in real property [to] maintain an action against any person claiming a conflicting interest...." However, the statute does not limit declaratory judgments to those who have conflicting property interests. Wisconsin Stat. § 806.04(11) requires joinder of a party who has any interest - property or otherwise - that would be affected by the declaration.

¶ 12. Here, prior to the merger, the Association possessed all of the power, rights, obligations, assets and liabilities articulated in Wis. Stat. § 703.15(3). The Association lost those rights at the time of the merger. If the Annoyes' declaratory judgment is successful, the Association's rights would be restored.

¶ 13. We conclude that the Association has an interest under Wis. Stat. § 806.04(11) and that it was a proper party to the action. Therefore, we reverse the order dismissing Annoyes' complaint.

¶ 14. However, the circuit court also found that the unit owners were proper and necessary parties to any action seeking to declare the merger of condominiums unlawful: "The unit owners are the owners of the condominium. Obviously their interests would be affected by the merger or the consolidation of these two condominiums.... Again, as I've already ruled, I think it's clear that those unit owners need to be made parties to this lawsuit...." We agree with the court. Under Wis. Stat. § 806.04(11), persons who have any interest that would be affected by the declaratory relief are required to be joined in the action. Unit owners are necessary parties because the relief claimed by the Annoyes' challenge to the merger affects the owners' real property interests. Therefore, we remand to the circuit court with directions to allow the Annoyes to amend their complaint to add the individual unit owners as parties to this action.

By the Court. — Order reversed and cause remanded with directions.

       This is an expedited appeal under Wis. Stat. Rule 809.17.

       Wisconsin Stat. § 841.01(1) reads as follows: "Any person claiming an interest in real property may maintain an action against any person claiming a conflicting interest, and may demand a declaration of interests."


author: PER CURIAM.

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

      No. 02-0875-D.

      Decided November 15, 2002.

    2002 WI 122
    (Also reported in 653 N.W.2d 108.)
   PER CURIAM.

¶ 1. We review the petition filed by Attorney Boris Ouchakof pursuant to current SCR 22.19 for a consensual revocation of his license to practice law in this state. In that petition Ouchakof asserts that he cannot successfully defend against any of the allegations of misconduct set forth in the Office of Lawyer Regulation's (OLR) complaint filed against him on March 28, 2002. Given the severity of the 41 counts of misconduct alleged against Ouchakof in the OLR complaint, plus the additional 12 counts of misconduct currently being investigated by the OLR based on 4 separate clients' grievances filed against Ouchakof, which Ouchakof also acknowledges he cannot successfully defend against, we conclude revocation of Ouchakof s license to practice law in this state is fully warranted and we so order. We further order that Ouchakof pay the costs incurred in this disciplinary proceeding totaling $3246.72. We accept the OLR report and the referee's report supporting Ouchakof s petition for consensual revocation of his license to practice law in this state.

¶ 2. Boris Ouchakof was admitted to practice law in Wisconsin on September 8, 1989, and has practiced since then in Madison. His license is currently suspended and has been suspended since June 5, 2000, due to his noncompliance with continuing legal education requirements.

¶ 3. On March 28, 2002, the OLR filed a complaint in this court charging Ouchakof with 41 counts of professional misconduct relating to 14 separate client matters. Several of those counts arose after Ouchakof was hired as an associate in a Madison law firm in 1992. He remained with that firm until September 30, 1998. The OLR complaint detailing Ouchakof s conduct while an associate in the firm alleged that he had secretly charged and accepted fees without disclosing or remitting those fees to the firm as his employment contract required; that he failed to open firm files for various clients despite using the firm's resources and staff for those clients; that he billed various clients of the firm using his own letterhead, not the firm's, and then failed to remit the fees he received to the firm.

¶ 4. In addition, the OLR complaint alleged numerous acts of misconduct by Ouchakof in representing clients, several of whom had retained him to assist them in immigration, asylum, visa or work permit issues with the Immigration and Naturalization Service (INS).

¶ 5. More specifically, the 41 misconduct counts alleged against Ouchakof by the OLR in its complaint include:

• Six counts of engaging in conduct involving dishonesty, fraud, deceit or misrepresentation contrary to SCR 20:8.4(c).
• Six counts of failing to act with reasonable diligence and promptness in representing a client, contrary to SCR 20:1.3.
• Eight counts of failing to promptly comply with a client's reasonable request for information contrary to SCR 20:1.4(a).
• One count of failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation contrary to SCR 20:1.4(b).
• One count of failing to communicate the basis or rate of his fee to a client within a reasonable time after commencing representation contrary to SCR 20:1.5(b).
• One count of violating SCR 20:1.15(d) which provides that when a lawyer is in possession of property in which both the lawyer and another person claim interest, the property shall be treated by the lawyer as trust property until there has been an accounting and severance of their interest.
• Four counts of violating SCR 20:1.16(d) which requires a lawyer, upon termination of representation, to take steps to protect a client's interest.
• One count of practicing law during the time when his law license was suspended thereby violating SCR 31.10(1) which prohibits a lawyer from engaging in the practice of law in Wisconsin while his bar membership is suspended and therefore violating SCR 20:8.4(f) whieh states that it is professional misconduct for an attorney to violate a supreme court rule regulating the conduct of lawyers.
• Three counts of violating current SCR 21.15(4) which provides that an attorney's willful failure to cooperate with the Office of Lawyer Regulation constitutes a violation of the Rules of Professional Conduct.
• Three counts of violating current SCR 22.03(2) which requires a respondent to fully and fairly disclose all facts and circumstances pertaining to alleged misconduct within 20 days after being served with a request for a written response.
• Three counts of violating current SCR 22.03(6) which provides that a respondent's willful failure to provide relevant information to answer questions fully, or to furnish documents is misconduct, regardless of the merits of the matters asserted in the grievance.
• One count of violating SCR 22.26(1) (b) which required a suspended attorney to promptly notify a court or administrative agency and the attorney for each opposing party of the suspension and the suspended attorneys consequent inability to act as an attorney.
• Three counts of violating SCR 22.26(l)(a)l. which required a suspended attorney to notify by certified mail all clients being represented in pending matters of suspension and the consequent inability to act as an attorney and to advise the clients to seek legal advice elsewhere.

¶ 6. In addition to these 41 counts of misconduct, the OLR is currently investigating grievances filed by 4 clients against Ouchakof; all of those grievances under investigation were filed by clients who had retained Ouchakof for assistance in dealing with the INS. Those 4 pending investigations involve 12 additional counts of misconduct including 2 counts of violating SCR 20:1.3; 1 count of violating SCR 20:1.4(a); 1 count of violating SCR 20:1.16(d); 2 counts of violating SCR 20:8.4(c); 2 counts of violating SCR 22.03(2); 1 count of violating SCR 22.26(l)(a)l.; and 3 counts of violating SCR 31.10(1).

¶ 7. After Ouchakof filed his answer to the OLR complaint, Attorney Steven J. Caulum was appointed as a referee to hear the misconduct case. Also, after Ouchakof s answer was filed, the OLR began its investigation into the 4 additional grievances by Ouchakof s clients alleging the 12 additional acts of misconduct.

¶ 8. Prior to any hearing before the referee Ouchakof filed his petition for consensual license revocation pursuant to current SCR 22.19 acknowledging that he cannot successfully defend against the allegations of misconduct set forth in the OLR's complaint or against the allegations of misconduct identified in the pending grievance investigations. He also asserts that he does not want to go through the process of a hearing before the referee; therefore, he petitions this court for consensual revocation of his license to practice law.

¶ 9. These are serious and wide-ranging allegations of professional misconduct that Ouchakof now acknowledges he cannot successfully defend against. The OLR has filed a statement in support of this petition and the referee has recommended that this court impose the maximum discipline available. We agree and conclude that Ouchakof s egregious behavior warrants the revocation of his license to practice law in this state. Accordingly,

¶ 10. IT IS ORDERED that Boris Ouchakofs license to practice law in this state is revoked effective the date of this order.

¶ 11. IT IS FURTHER ORDERED that within 60 days of the date of this order, Boris Ouchakof pay to the Office of Lawyer Regulation the costs of this proceeding totaling $3246.72.

¶ 12. IT IS FURTHER ORDERED that Boris Ouchakof comply with the provisions of current SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been revoked.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process was substantially restructured. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility to the Office of Lawyer Regulation and the supreme court rules applicable to the lawyer regulation system were also revised in part. Most of the conduct underlying this case arose prior to October 1, 2000. However, the complainant in this case will be referred to as the OLR. All references to supreme court rules will be to those in effect prior to October 1, 2000, unless otherwise noted.


text:
    In the Matter of Disciplinary Proceedings Against Christopher L. O'Byrne, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Christopher L. O'Byrne, Respondent.
    Supreme Court

      No. 02-1374-D.

      Decided November 15, 2002.

    2002 WI 123
    (Also reported in 653 N.W.2d 111.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Christopher L. O'Byrne's license to practice law in Wisconsin be revoked for professional misconduct. The referee also recommended that Attorney O'Byrne be required to make restitution to three clients and that he be required to pay the costs of the proceeding.

¶ 2. We determine that the seriousness of Attorney O'Byrne's professional misconduct warrants the revocation of his license to practice law in Wisconsin.

¶ 3. Attorney O'Byrne was admitted to practice law in Wisconsin in 1986 and practiced in Port Washington. In 1994 he consented to a public reprimand for misconduct consisting of engaging in conduct involving dishonesty and misrepresentation, failing to disclose facts necessary to correct a misapprehension, failing to fairly and fully disclose all facts and circumstances pertaining to an investigation, and failing to respond to a client's reasonable request for information. On April 3, 2001, this court indefinitely suspended Attorney O'Byrne's license to practice law, effective April 16, 2001, for his willful failure to cooperate with two Office of Lawyer Regulation (OLR) grievance investigations. On November 21, 2001, this court suspended Attorney O'Byrne's license for 60 days, effective December 26, 2001, for failing to act with reasonable diligence and promptness in a probate matter and failing to cooperate with the OLR investigation. See In re Disciplinary Proceedings Against O'Byrne, 2001 WI 121, 248 Wis. 2d 699, 635 N.W.2d 598.

¶ 4. On May 22, 2002, the OLR filed a complaint alleging misconduct with respect to Attorney O'Byrne's handling of matters for four separate clients. The first client retained Attorney O'Byrne regarding the purchase of a business. The purchase price for the business was $100,000. Ten thousand dollars of the purchase price was .to be held in escrow to assure that the seller complied with various sale provisions. At the closing, the seller was given a check for $90,000 and Attorney O'Byrne was given a check for $10,000 payable to the "McManus & O'Byrne Trust Account." Attorney O'Byrne deposited the check into a personal checking account jointly owned by him and his wife rather than into the trust account. By December 8, 1998, he had converted all of the escrowed funds to his own use.

¶ 5. Within approximately one week of the closing the seller had failed to comply with the terms of the agreement and had also failed to turn over a vehicle that was included in the purchase. The client advised Attorney O'Byrne of these problems and Attorney O'Byrne said he would place a lien on the vehicle so it could not be sold. Attorney O'Byrne later falsely told the client that he had obtained a lien against the vehicle.

¶ 6. The client asked Attorney O'Byrne about the $10,000 as frequently as three times a week. Attorney O'Byrne told the client the seller needed to "sign off' on the funds before they could be released and that Attorney O'Byrne was working on obtaining a release of the escrowed funds. In early June 2001 the client retained new counsel. New counsel secured a conditional authorization from the seller's attorney for release of the $10,000 thought to be held in Attorney O'Byrne's trust account. Attorney O'Byrne failed to respond to letters from the client's new counsel and never returned the $10,000. He also failed to cooperate with the OLR's investigation into the matter.

¶ 7. The second claim of misconduct alleged in the OLR's complaint involved Attorney O'Byrne's handling of collection matters for a health care group. The health care group referred approximately 290 collection matters to Attorney O'Byrne, and he performed services on about 95 of those referrals. Attorney O'Byrne was retained with the understanding that he would receive 25% of whatever he collected, regardless of whether the patient paid him or the health care group. He was to forward all funds he collected to the health care group and then bill them monthly for his services. He was not authorized to deduct any fees from the funds he collected.

¶ 8. The OLR's audit of Attorney O'Byrne's trust account revealed that he failed to turn over between $23,258.89 and $24,968.16 owed to the health care group. When the OLR asked Attorney O'Byrne to explain his handling of the funds, Attorney O'Byrne, through counsel, invoked the Fifth Amendment.

¶ 9. Attorney O'Byrne disbursed a trust account check to the health care group in payment of funds collected for them, but there were insufficient funds in the account to cover the check. Attorney O'Byrne subsequently deposited a check drawn on his personal account that allowed the check to clear. Attorney O'Byrne, through counsel, informed the OLR that the overdraft in his trust account was the result of an error in withdrawing funds from the trust account rather than his business account.

¶ 10. Attorney O'Byrne's counsel also provided the OLR "originals" of bank statements, cancelled checks and deposit slips for Attorney O'Byrne's trust account. The OLR had previously subpoenaed these records from the bank because of Attorney O'Byrne's failure to produce them. In comparing the subpoenaed checks with the "originals" produced by Attorney O'Byrne, the OLR discovered that four of the "original" checks, each payable to Attorney O'Byrne, had been altered.

¶ 11. The third claim of misconduct alleged in the OLR's complaint involved a client who retained Attorney O'Byrne in March of 2000 to represent him regarding a Class E felony charge in Ozaukee county. The client wanted the charge to be reduced to a misdemeanor. During their initial meeting Attorney O'Byrne advised the client he did not expect any trouble getting the charge reduced. Attorney O'Byrne suggested that the client provide him with the funds to make restitution to the victim. Attorney O'Byrne said he could hold the restitution funds in his trust account and that it would be a sign of good faith when he began talking to the district attorney.

¶ 12. On April 5, 2000, the client gave Attorney O'Byrne two checks. One check was for Attorney O'Byrne's legal fees. The other check, in the amount of $1850, was for restitution. Attorney O'Byrne deposited the $1850 restitution check in his trust account. Over the next two and one-half months Attorney O'Byrne issued checks from the trust account to himself and by June 19, 2000, the entire $1850 had been converted to Attorney O'Byrne.

¶ 13. In September 2000 the client entered a no contest plea to the felony charge based on Attorney O'Byrne's representation that the district attorney had refused to discuss a reduction in the charge. When Attorney O'Byrne asked the district attorney to reduce the charge to a misdemeanor he never mentioned that he had received funds from the client to pay restitution to the victim. The district attorney first learned that the client had given Attorney O'Byrne funds to pay restitution after the client advised his probation officer of this fact. The district attorney said if she had known the restitution had been paid up front, she would have seriously reconsidered the offer she had made to resolve the case. In November 2000 the client was convicted of a felony, based on his plea, and placed on three years' probation. He was also ordered to pay $1921, which included the $1850 restitution, plus costs, and was required to serve 30 days in jail. Attorney O'Byrne told the client to have his probation officer contact him about the restitution so that Attorney O'Byrne could forward the funds.

¶ 14. In January 2001 the client informed his probation officer that Attorney O'Byrne had the money to pay the restitution. Attorney O'Byrne told the probation officer he would forward the restitution payment. The client eventually received a check from Attorney O'Byrne for the $1850, dated April 19, 2001, drawn on Attorney O'Byrne's law office account rather than his trust account. Although the check was originally returned for insufficient funds, the bank put it through a second time and the check cleared the next day. Attorney O'Byrne failed to respond to the OLR's request for information concerning the grievance filed by the client.

¶ 15. The fourth incident of misconduct alleged in the OLR's complaint concerned Attorney O'Byrne's representation of a client who retained him to represent her regarding a visitation matter in a pending Ozaukee county case. The client gave Attorney O'Byrne a $500 money order to commence the representation. Attorney O'Byrne deposited the money order into a personal joint checking account belonging to him and his wife. On April 16, 2001, this court suspended Attorney O'Byrne's license for failing to cooperate with the OLR investigations. Attorney O'Byrne never performed any work for the client. The client requested that Attorney O'Byrne refund the $500 and he agreed to do so but never did.

¶ 16. Attorney O'Byrne did not file an answer to the OLR's complaint and never appeared in the matter. Lance S. Grady was appointed as referee. The OLR moved for default judgment. The referee issued a report granting the motion for default judgment.

¶ 17. The referee concluded that by depositing funds that were to be held in trust into personal accounts, Attorney O'Byrne violated SCR 20:1.15(a). The referee also found that by converting to his own purposes $10,000 that he was supposed to hold in escrow for the first client, by misappropriating and failing to hold in trust funds that he had collected on behalf of the health care group, and by failing to hold in trust the $1850 which the third client gave him to pay as restitution, Attorney O'Byrne violated SCR 20:8.4(b).

¶ 18. The referee further found that by misrepresenting to the first client that he could not release escrow money without obtaining the seller's consent and that he was attempting to obtain that consent when he actually had converted the client's funds; by misrepresenting to the OLR that overdrafts on his trust account were the result of an error in withdrawing funds from the trust account rather than his business account; by altering checks he provided to the OLR during the course of the investigation; and by failing to disclose to the district attorney during plea negotiations that the third client had given him funds to pay restitution because Attorney O'Byrne had converted those funds to his own use, Attorney O'Byrne violated SCR 20:8.4(c).

¶ 19. The referee also concluded that by failing to return the $10,000 to the first client or the client's new attorney after the representation was terminated, and by failing to refund the $500 fee to the fourth client after performing no services for her, Attorney O'Byrne violated SCR 20:1.16(d). The referee also concluded that by continuing to represent the third client after converting the funds the client had given him to pay restitution, thereby compromising the client's opportunity to obtain a better plea bargain rather than reveal his conversion of the client's funds, Attorney O'Byrne violated SCR 20:1.7(b). The referee also found that by failing to promptly deliver the $1850 to either the client or the client's probation agent, Attorney O'Byrne violated SCR 20:1.15(b). Finally, the referee found that by failing to respond to the OLR investigative requests regarding the grievances filed by his clients, Attorney O'Byrne violated SCR 22.03(6).

¶ 20. We adopt the referee's findings of fact and conclusions of law. Attorney O'Byrne's misconduct with respect to his handling of the four client matters, including converting nearly $34,000 of client funds to his own use, consists of very serious failings warranting the revocation of his license to practice law.

¶ 21. IT IS ORDERED that the license of Christopher L. O'Byrne to practice law in Wisconsin is revoked effective the date of this order.

¶ 22. IT IS FURTHER ORDERED that Christopher L. O'Byrne comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been revoked.

¶ 23. IT IS FURTHER ORDERED that within 60 days of the date of this order Christopher L. O'Byrne make restitution to the first client in the amount of $10,000, to the health care group in the amount of $23,258.89, and to the fourth client in the amount of $500.

¶ 24. IT IS FURTHER ORDERED that within 60 days of the date of this order Christopher L. O'Byrne pay to the Office of Lawyer Regulation the costs of this proceeding.

¶ 25. IT IS FURTHER ORDERED that restitution to Christopher L. O'Byrne's clients is to be paid prior to paying costs to the Office of Lawyer Regulation.

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

       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 20:1.16(d) provides:

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

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

       SCR 20:1.15(b) provides:
      (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.

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