text:
    In the Matter of Disciplinary Proceedings Against Ronald W. Hendree, Attorney at Law: Board of Attorneys Professional Responsibility n/k/a Office of Lawyer Regulation, Complainant, v. Ronald W. Hendree, Respondent.
    Supreme Court

      No. 1997AP1746-D.

      Decided October 19, 2005.

    2005 WI 142
    (Also reported in 705 N.W.2d 84.)
   The Court entered the following order on this date:

We review the recommendation of the referee, Kathleen Callan Brady, that Ronald W Hendree's petition seeking the reinstatement of his license to practice law in Wisconsin be denied. Ronald Hendree has not appealed from that recommendation. After our review pursuant to SCR 22.33(3), we adopt the referee's findings and agree that Hendree has not met his burden imposed by SCR 22.31 of demonstrating by clear, satisfactory, and convincing evidence that his resumption of the practice of law would not be detrimental to the administration of justice or subversive to the public interest. Accordingly, we deny Hendree's petition for reinstatement. Furthermore, we direct that the costs of the reinstatement proceedings, which are $6123.29 as of August 19, 2005, be paid by Hendree.

Hendree's license to practice law in Wisconsin was suspended for one year effective August 4, 1997. See Disciplinary Proceedings Against Hendree, 211 Wis. 2d 440, 565 N.W.2d 119 (1997). Hendree and the Board of Attorneys Professional Responsibility (BAPR), the predecessor to the Office of Lawyer Regulation (OLR) filed a stipulation in which Hendree admitted the allegations in BAPR's complaint and further stipulated that a one-year suspension was appropriate discipline for his misconduct, which included failing to return a client's advance fee payment upon • request; disobeying an obligation under the rules of a tribunal; failing to keep a client reasonably informed about the status of a matter; failing to act with reasonable diligence and promptness in representing a client; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; failing to properly safeguard money belonging to a third person; and making misrepresentations to BAPR in the course of its investigation. As part of this court's suspension order, Hendree was ordered to make restitution to various parties and was required to comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

Hendree had previously been publicly reprimanded for misconduct with respect to his representation of a labor union and its members. That public reprimand was conditioned on his refunding $3750 to the labor union.

Hendree first petitioned for reinstatement of his license to practice law in August 1999. That petition was subsequently dismissed due to Hendree's failure to comply with the restitution terms of his suspension.

Hendree filed another petition for reinstatement in August 2004. The OLR opposed the petition. A hearing was held before the referee in May 2005. Various witnesses testified on Hendree's behalf. One witness testified in opposition to Hendree's petition for reinstatement, and other people wrote letters opposing the petition. On August 1, 2005, the referee issued a report recommending that the petition be denied.

In her report, the referee noted that various witnesses testified in support of Hendree's petition for reinstatement and commented about his wide range of community service to various groups and individuals. The referee said, however, those witnesses were not knowledgeable about the specifics of the facts surrounding Hendree's suspension and although the witnesses testified that Hendree was remorseful as to the loss of his license to practice law and its impact on his personal life, there was no testimony as to how his misconduct affected others.

The referee noted that one witness, Keith C., testified in opposition to the reinstatement of Hendree's license. Keith C. testified he had hired Hendree and paid him a retainer fee and a week later when he returned to Hendree's office he found it closed. Keith C. testified that Hendree "defied the public trust." The referee noted that other former clients of Hendree wrote letters objecting to the reinstatement of his license to practice law.

The referee noted that Hendree was called as a witness adversely by the OLR and did not testify directly on his own behalf. Hendree testified that he disagreed with this court's conclusions in the public reprimand imposed on him in 1997 and he also disagreed with this court's findings in the 1997 suspension of his license to practice law. Hendree testified he stipulated to the one-year suspension because he had no money.

The referee found Hendree failed to make restitution to all persons injured or harmed by his misconduct as required by this court's previous orders. She noted Hendree testified the reason he failed to comply with the restitution orders was that he has no money, but he failed to file the financial information repeatedly requested by the OLR to substantiate his claim that it would be a hardship for him to make restitution at this time. The referee also noted that while Hendree furnished her and the OLR with copies of some income tax returns, the OLR noted that Hendree provided no evidence that the tax returns were in fact ever filed with the Internal Revenue Service and the Wisconsin Department of Revenue has no tax returns on file for him from 1996 to the present.

The referee noted that Hendree admitted he did not notify all clients, courts and tribunals of his suspension as required by SCR 22.26. She further noted that the Board of Bar Examiners (BBE) has not issued a recommendation concerning Hendree's petition for reinstatement because Hendree failed to submit all of the information requested by the BBE concerning his attendance at various continuing legal education programs. The referee also noted that an OLR investigator testified she received a letter from the Wisconsin Lawyers Fund advising that Hendree owes the Fund $6230 for 17 former clients and that he has not paid any of those clients.

The referee noted that SCR 22.31 provides that in a reinstatement proceeding the petitioner has the burden of demonstrating, by clear, satisfactory and convincing evidence: (a) that he or she has the moral character to practice law in Wisconsin; (b) that his or her resumption of practice of law will not be detrimental to the administration of justice or subversive to the public interest; (c) that his or her representations in the reinstatement petition are substantiated; and (d) that he or she has complied fully with the terms of the order of suspension and with the requirements of SCR 22.26.

The referee concluded that Hendree failed to meet his burden of demonstrating by clear, satisfactory and convincing evidence that his representations were substantiated. The referee further found that Hendree failed to make restitution to or settle all claims of persons injured or harmed by his misconduct, including reimbursement to the Wisconsin Lawyers Fund for Client Protection. The referee also found that Hendree failed to demonstrate by clear, satisfactory and convincing evidence that he lacked the financial resources to make restitution.

The referee further concluded that Hendree failed to demonstrate by clear, satisfactory and convincing evidence that he has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and that he will act in conformity with those standards. The referee also found that Hendree failed to timely respond to OLR's requests for information. The referee also concluded that Hendree failed to demonstrate by clear, satisfactory and convincing evidence that he has complied fully with the terms of the order of suspension and that he will continue to comply with them until his license is reinstated.

While the referee noted that the suspension of Hendree's license has had a profound effect on him, she said unfortunately Hendree failed to comply with this court's order of suspension. The referee said most troubling was Hendree's testimony that he disagreed with the findings of the court's orders in the disciplinary proceeding. The referee noted that while Hendree indicated he plans to practice criminal law and represent immigrants accused of crimes under the Patriot Act, there was no testimony as to how he intends in the future to avoid the types of situations that resulted in his current suspension.

The referee said Hendree continues to have problems with timeliness and that he failed to fully cooperate with the OLR in its investigation. She said his testimony does not indicate he has an understanding of the Rules of Professional Conduct and that he will act in conformity with those rules. The referee recommended that Hendree demonstrate the corrective effect that the suspension has had on him by complying with the suspension order and meeting the requisite burden of proof required by SCR 22.31.

As noted, Hendree has not appealed from the referee's report, findings of fact, conclusions of law and recommendation that his petition for reinstatement be denied.

We determine that the record supports the referee's findings with respect to Hendree's petition for reinstatement and we adopt them. We also agree that Hendree has not met his burden imposed by SCR 22.31 of demonstrating by clear, satisfactory and convincing evidence that his resumption of the practice of law would not be detrimental to the administration of justice or subversive to the public interest. Accordingly, we deny his petition for reinstatement. We further conclude that Hendree should be responsible for the costs of this proceeding.

IT IS ORDERED that Ronald W. Hendree's petition for reinstatement of his license to practice law in this state is denied.

IT IS FURTHER ORDERED that within 60 days of the date of this order Ronald W. Hendree shall pay to the Office of Lawyer Regulation the costs of this reinstatement proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Ronald W Hendree to practice law in Wisconsin shall remain suspended until further order of the court.

Butler, J., took no part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

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

      No. 2004AP1765-D.

      Decided October 19, 2005.

    2005 WI 140
    (Also reported in 704 N.W.2d 905.)
   PER CURIAM.

¶ 1. We review the referee's report and recommendation that Attorney Jeffry Van Groll's license to practice law in this state be suspended for one year for his professional misconduct as alleged in the complaint filed by the Office of Lawyer Regulation (OLR) on July 2, 2004. The complaint alleged nine counts of professional wrongdoing against Attorney Van Groll.

¶ 2. The first four counts relate to Attorney Van Groll's improper handling of client S.K.'s funds and Attorney Van Groll's failure to provide relevant information to the OLR, as well as his misrepresentations to the OLR concerning the S.K. representation. Count 1 alleges a violation of former SCR 20:1.15(a) for failing to hold S.K.'s funds in trust. Count 2 alleges violations of former SCR 20:1.15(b) and SCR 20:1.16(d) for failing to render an accounting of S.K.'s funds or to return such funds to S.K. in a timely manner. Count 3 alleges a violation of SCR 20:8.4(c) for conversion of S.K.'s funds. Count 4 alleges a violation of SCR 22.03(6) for failing to cooperate and provide full and truthful responses to the OLR's requests during its investigation of the S.K. matter.

¶ 3. Counts 5 — 8 address Attorney Van Groll's failure generally to hold client funds in trust, to disburse them properly, and to maintain and preserve trust account records, as well as his falsely certifying on his State Bar of Wisconsin dues statements that he had complied with all trust account record-keeping requirements.

¶ 4. Count 5 alleges that Attorney Van Groll commingled his funds with clients' trust funds in violation of former SCR 20:1.15(a). Count 6 alleges a violation of former SCR 20:1.15(e) for failing to maintain and preserve trust account records. Count 7 alleges a violation of former SCR 20:1.15(g) for falsely certifying on his bar dues statement that he had complied with all trust account record-keeping requirements. Count 8 alleges that Attorney Van Groll converted property or funds of his clients in violation of SCR 20:8.4(c).

¶ 5. Finally, Count 9 alleges that Attorney Van Groll, in violation of SCR 20:8.4(f), had failed to file income tax returns for calendar years 1996,1997,1998, 1999, and 2002, and that he had filed untimely returns (without seeking an extension) for calendar years 2000 and 2001.

¶ 6. Attorney Michael Ash was appointed as referee in this matter. Prior to the public hearing, Attorney Van Groll and the OLR submitted a "Joint Pre-Trial Statement of Contested and Uncontested Facts and Conclusions of Law" (the "stipulation"). In the stipulation, Attorney Van Groll admitted the violations alleged in Counts 1, 6, and 9, and agreed to a number of uncontested facts. The referee conducted a hearing on December 20, 2004 and January 7, 2005.

¶ 7. Following the submission of post-trial briefs by the OLR and Attorney Van Groll, the referee issued his report and recommendation, which included very detailed findings of fact and conclusions of law. The referee found that Attorney Van Groll had committed professional misconduct with respect to each of the nine counts contained in the OLR complaint. He recommended as discipline for these violations that Attorney Van Groll's license be suspended for a period of one year; that he be ordered to pay restitution, plus interest, to two clients; and, that he be ordered to pay the costs of this proceeding.

¶ 8. Neither Attorney Van Groll nor the OLR has appealed from the referee's report and recommendation. Accordingly, this court's review proceeds pursuant to SCR 22.17(2).

¶ 9. We approve and adopt the referee's findings of fact and conclusions of law and determine that the seriousness of Attorney Van Groll's misconduct warrants the imposition of a one year suspension of his license to practice law. We also agree with and adopt the referee's recommendation that Attorney Van Groll be ordered to pay restitution to client, S.K., in the amount of $1736.48, plus interest; to pay restitution to client, K.W., in the amount of $221.05, plus interest; and, to pay the costs of this proceeding, which were $15,781.20 as of June 13, 2005.

¶ 10. Attorney Van Groll has been licensed to practice law in Wisconsin since 1986. He maintains an office in Milwaukee. In 1997, Attorney Van Groll was privately reprimanded for failing to exercise reasonable diligence and failing to communicate with his client concerning the representation.

¶ 11. In approximately May 2001, Attorney Van Groll was retained by S.K. on a litigation matter. S.K.'s mother delivered $15,000 in cash to Attorney Van Groll. Attorney Van Groll, however, did not deposit the funds into his client trust account; rather, he claims that he put the cash into a safe in his office. Before any of the S.K. funds were deposited, Attorney Van Groll paid $230 in expenses for S.K. by drawing checks on his client trust account. After S.K. terminated Attorney Van Groll's services in September 2001, S.K. and his mother requested an accounting of the $15,000 and a return of any unused amounts. Attorney Van Groll did not respond to these repeated requests. Finally, at some point in January 2002, Attorney Van Groll sent a letter to S.K.'s mother enclosing a check in the amount of $6500. Attorney Van Groll's letter said that with the receipt of the $6500 check, all of the trust monies had been accounted for. Attorney Van Groll, however, never provided any accounting that showed how he had arrived at the $6500 amount. Indeed, in the course of the OLR proceeding, Attorney Van Groll has admitted that he still retains $1736.48 of S.K's funds for which he cannot account.

¶ 12. When the OLR attempted to investigate Attorney Van Groll's handling of the S.K. trust funds, he consistently failed to provide trust account records as requested by the OLR. Attorney Van Groll told the OLR investigator that he was in the process of locating the applicable records. Finally, at the end of April 2002, Attorney Van Groll told the OLR that he could not produce some of the trust account records because his computer had crashed and he did not maintain any backup records. Attorney Van Groll also told the OLR that after keeping the funds in his office safe for six months he had deposited them into his client trust account.

¶ 13. During the OLR investigation, it was ultimately discovered that any computer crash as alleged by Attorney Van Groll would have occurred before December 6, 2001, and therefore, prior to Attorney Van Groll's initial contact with the OLR and prior to his statements to the OLR that he would produce trust account records to account for the funds. If his computer had indeed crashed at the beginning of December 2001, and his only records had been destroyed at that time, his subsequent statements about producing trust account records were untrue. In addition, Attorney Van Groll later conceded that he had not, in fact, deposited the S.K. funds in a financial institution as required by SCR 20:1.15, rendering his prior statements to the contrary also untrue. Attorney Van Groll delayed, misled, and deceived the OLR investigators in a number of respects concerning the deposit of S.K's funds in his trust account and concerning the existence and adequacy of his trust account records.

¶ 14. The referee's findings concerning the S.K. matter are not clearly erroneous and are adopted by the court. They support the referee's legal conclusions that Attorney Van Groll violated former SCR 20:1.15(a) and (b), SCR 20:1.16(d), SCR 20:8.4(c) and SCR 22.03(6) as alleged in Counts 1 — 4 of the OLR complaint.

¶ 15. As a result of the OLR's concerns about Attorney Van Groll's handling of client funds, it conducted an audit of his trust account. The OLR audit was based principally on records maintained by Attorney Van Groll's bank because Van Groll failed to produce trust account records. Either such records never existed in the first instance or they were lost due to a computer crash and Attorney Van Groll's failure to maintain either hard copy records or duplicate computer files.

¶ 16. The OLR audit demonstrated that Attorney Van Groll had disbursed funds on behalf of persons as to whom there were no written record of any deposit of funds. It likewise showed multiple instances where funds had been deposited on behalf of clients, but the available trust account records could not account for all or a part of the subsequent disbursement of the deposits. As the referee concluded, Attorney Van Groll's poor handling of his trust account caused him repeatedly to use client monies for purposes other than what the client had intended or authorized.

¶ 17. Finally, it was undisputed that Attorney Van Groll improperly kept personal funds in his trust account. He claimed that any improper disbursement of trust account funds was from his personal monies rather than from client funds. He even indicated during the proceedings before the referee that the intermingling of his personal funds was a beneficial situation since it provided a "positive float" that allowed him to cover trust account disbursements on behalf of his clients. This belief by Attorney Van Groll evidences a complete lack of understanding as to the basic and important rules for maintaining client funds in separate trust accounts and for creating and preserving records to document the handling of such client trust funds.

¶ 18. It should be noted that, although Attorney Van Groll failed to demonstrate competence in even the minimum practices of trust account management, the referee concluded that Attorney Van Groll had not purposely deprived any client of money for his own benefit by way of deceit or fraud. With the exception of the $1736.48 that belongs to S.K. and the $221.05 that belongs to another client, K.W., there does not appear to be any other client that has lost money due to Attorney Van Groll's trust account violations.

¶ 19. In 1999, 2000, and 2001, Attorney Van Groll signed State of Wisconsin Bar membership dues statements. By signing those statements, he certified that he had "complied with each of the record-keeping requirements sent forth in SCR 20:1.15(e)." Attorney Van Groll, however, did not maintain all of the records required by former SCR 20:1.15(e), thereby rendering his certifications false.

¶ 20. The referee's findings concerning Attorney Van Groll's improper handling of his trust account, his failure to maintain appropriate trust account records and his false certifications are not clearly erroneous and are adopted by this court. Based on those findings, we agree with the referee's legal conclusions that Attorney Van Groll violated former SCR 20:1.15(a), (e) and (g), and SCR 20:8.4(c).

¶ 21. Finally, as admitted by Attorney Van Groll, he failed to file tax returns for the calendar years of 1996,1997,1998,1999, and 2002, and he filed untimely returns (without seeking extensions) for the calendar years of 2000 and 2001. By willfully failing to file income tax returns on a timely basis, Attorney Van Groll has violated SCR 20:8.4(f). See In re Disciplinary Proceedings Against Owens, 172 Wis. 2d 54, 56-57, 492 N.W.2d 157 (1992).

¶ 22. Having adopted the referee's factual findings and agreed that the facts constitute violations of the rules of professional conduct on each of the complaint's nine counts, we turn to the appropriate discipline to be imposed. The referee recommended the substantial sanction of a one-year suspension from the practice of law. The referee noted that while Attorney Van Groll had not acted with intent to enrich himself, he had exhibited an "abysmal and culpable ignorance of very basic legal duties like filing income tax returns and keeping clients' funds separate from one's own." Moreover, Attorney Van Groll was not completely honest or candid with the OLR investigators.

¶ 23. In light of Attorney Van Groll's history of past discipline, the seriousness of his multiple violations, the need to impress upon him and other attorneys the gravity of such misconduct, and to protect the public from misconduct of attorneys licensed to practice law in this state, we conclude that a suspension of one year is appropriate discipline in this case. We also agree with the referee's recommendation to order Attorney Van Groll to pay restitution, plus interest, to S.K. and K.W. Finally, we conclude that Attorney Van Groll should be required to pay the costs of this proceeding.

¶ 24. IT IS ORDERED that the license of Attorney Jeffry Van Groll to practice law in Wisconsin is suspended for a period of one year, effective November 18, 2005.

¶ 25. IT IS FURTHER ORDERED that within 30 days of the date of this order, Attorney Van Groll shall pay restitution to S.K. in the amount of $1736.48, plus interest at the legal rate of five percent (5%) per annum for the period from January 2, 2002 until the date of payment.

¶ 26. IT IS FURTHER ORDERED that within 30 days of the date of this order, Attorney Van Groll shall pay restitution to K.W. in the amount of $221.05, plus interest at the legal rate of five percent (5%) per annum for the period from July 27, 2001 until the date of payment.

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

¶ 28. IT IS FURTHER ORDERED that Attorney Van Groll shall comply, if he has not already done so, with the requirement of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       Former SCR 20:1.15 applies to misconduct committed prior to July 1, 2004. Former SCR 20:1.15(a) provided in relevant part that 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."

       Former SCR 20:1.15(b) provided:
      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 20:1.16(d) provides in relevant part that upon termination of representation, a lawyer "shall take steps to the extent reasonably practicable to protect a client's interests, such as . . . surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned."

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

       SCR 22.03(6) provides that "[i]n 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."

       Former SCR 20:1.15(e) provides:
      Complete records of trust account funds and other trust property shall be kept by the lawyer and shall be preserved for a period of at least six years after termination of the representation. Complete records shall include: (i) a cash receipts journal, listing the sources and date of each receipt, (ii) a disbursements journal, listing the date and payee of each disbursement, with all disbursements being paid by check, (in) a subsidiary ledger containing a separate page for each person or company for whom funds have been received in trust, showing the date and amount of each receipt, the date and amount of each disbursement, and any unexpended balance, (iv) a monthly schedule of the subsidiary ledger, indicating the balance of each client's account at the end of each month, (v) a determination of the cash balance (checkbook balance) at the end of each month, taken from the cash receipts and cash disbursement journals and a reconciliation of the cash balance (checkbook balance) with the balance indicated in the bank statement, and (vi) monthly statements, including canceled checks, vouchers or share drafts, and duplicate deposit slips. A record of all property other than cash which is held in trust for clients or third persons, as required by paragraph (a) hereof, shall also he maintained. All trust account records shall be deemed to have public aspects as related to the lawyer's fitness to practice.

       Former SCR 20:1.15(g) states in relevant part that each member of the State Bar of Wisconsin annually shall "explicitly certify therein that he or she has complied with each of the record-keeping requirements set forth [in SCR 20:1.15(e)] hereof."

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

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


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

      No. 2004AP2623-D.

      Decided October 19, 2005.

    2005 WI 143
    (Also reported in 704 N.W.2d 910.)
   The Court entered the following order on this date:

Attorney Lee Erlandson has filed a petition for consensual license revocation under SCR 22.19. Attorney Erlandson's Wisconsin law license was suspended on June 5, 2001 after this court found that it appeared his continued practice of law posed a threat to the interests of the public and the administration of justice.

Attorney Erlandson is currently the subject of a pending disciplinary action in which the OLR filed a complaint in October 2004 alleging 10 counts of misconduct involving four clients. Three counts of misconduct relate to Attorney Erlandson's representation of Paula W. Those counts include conversion which involves dishonesty, fraud, deceit and misrepresentation and creating and filing false and fraudulent annual guardianship accounts in violation of SCR 20:8.4(c) and SCR 20:3.3(a)l. One count of misconduct relates to Attorney Erlandson's representation of Roy C. That count relates to a false billing statement involving dishonesty, contrary to SCR 20:8.4(c). Four counts involved Attorney Erlandson's representation of Donald H. Those counts include conversion, creating and attesting to a fraudulent guardianship report, filing a false annual guardianship report, and making false statements to the OLR, in violation of SCR 20:8.4(c), SCR 20:3.3(a) and SCR 22.03(6). Two counts involved Attorney Erlandson's representation of Steve K. Those counts included leaving the state without surrendering the client's file and without allowing the client adequate time to employ new counsel, failure to refund unearned fees, improperly terminating his representation, and failing to act diligently in the matter, in violation of 20:1.16(d) and SCR 20:1.3. Attorney Stanley E Hack was appointed referee in that disciplinary matter.

The OLR has informed the court that the guardian of Paula W applied for and received reimbursement from the State Bar's Wisconsin Lawyer's Fund for Client Protection (Fund) in the amount of $7300; that Donald H. applied for and received reimbursement from the Fund in the amount of $1304.95; and that Steve K. applied for and received reimbursement from the Fund in the amount of $1888. The OLR recommends that Attorney Erlandson be required to make restitution to the Fund in those amounts.

In March 2005, Attorney Erlandson was convicted of two Class H felonies, operating while under the influence of intoxicants and felony bailjumping. Attorney Erlandson is also currently the subject of an OLR investigation relating to his two felony convictions. In his petition, Attorney Erlandson submits under SCR 22.19(2) that he cannot successfully defend against the allegations of the OLR complaint or the investigation relating to the felony convictions. Referee Hack has filed a report recommending that Attorney Erlandson's license to practice law in Wisconsin be consensually revoked. The OLR also supports Attorney Erlandson's petition for consensual license revocation.

IT IS ORDERED that the petition for consensual license revocation is granted.

IT IS FURTHER ORDERED that the license of Lee Erlandson to practice law in Wisconsin is revoked effective the date of this order.

IT IS FURTHER ORDERED that Lee Erlandson shall comply with the requirements of SCR 22.26 relating to activities following revocation.

IT IS FURTHER ORDERED that Lee Erlandson make restitution to the Fund in the amounts set forth above.

IT IS FURTHER ORDERED that Lee Erlandson shall pay the costs of this proceeding.

       In August 2000, the Board of Attorneys Professional Responsibility (BAPR), the predecessor to the Office of Lawyer Regulation (OLR), filed a medical incapacity proceeding seeking the imposition of conditions on Attorney Erlandson's license to practice law. Pursuant to the parties' stipulation, this court determined that Attorney Erlandson was medically incapacitated as a result of his alcoholism. The court initially imposed certain conditions requested by BAPR on Attorney Erlandson's license to practice law. OLR subsequently filed a report saying Attorney Erlandson had failed to comply with those conditions. Based on that failure, this court temporarily suspended his license.

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

       SCR 20:3.3(a)(l) provides: Candor toward the tribunal

        (a) A lawyer shall not knowingly:
      (1) make a false statement of fact or law to a tribunal.

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

       SCR 20:1.16(d) provides: Declining or terminating representation
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

      SCR 20:1.3 provides: Diligence

        A lawyer shall act with reasonable diligence and promptness in representing a client.


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

      No. 2005AP1349-D.

      Decided October 19, 2005.

    2005 WI 144
    (Also reported in 705 N.W.2d 87.)
   The Court entered the following order on this date:

Attorney Gerald Proost has filed a petition for consensual license revocation under SCR 22.19. Attorney Proost was licensed to practice law in Wisconsin in 1952 and his license is currently in good standing.

Attorney Proost is the subject of five pending Office of Lawyer Regulation (OLR) grievance investigations involving his representation of five clients. In the first grievance investigation, Attorney Proost discussed with longtime client Anna P a plan whereby he would invest her savings and earn seven percent interest. Attorney Proost took Anna E, who was 88 years old, to her bank where she signed various documents based on her belief that no money would be removed from her savings account and Attorney Proost's promise that she would begin receiving monthly checks in the amount of $100. Anna E was unable to read the documents she was signing because she did not have her glasses. Anna E later learned that she had signed over to Attorney Proost a cashier's check in the amount of $4500. Attorney Proost executed a promissory note and eventually repaid Anna E all monies owed to her. In addition, Attorney Proost drafted a will for Anna E, naming Attorney Proost's brother as trustee and personal representative of Anna E's estate. According to the OLR, this conduct violated SCR 20:1.8(a), 20:1.8(c) and SCR 20:8.4(c).

The second grievance under investigation involves Attorney Proost's representation of Belva T. in various capacities. In 1990, Attorney Proost borrowed $15,000 from Belva T. He executed a promissory note promising to repay the loan, plus interest, in one year. At the time of Belva T.'s death in June of 2001, Attorney Proost still owed over $13,000 on the loan. Belva T.'s brothers filed suit against Attorney Proost. During the course of the litigation, Attorney Proost sent Belva T.'s brothers' attorney a check for $3500 as partial payment on the loan but there were insufficient funds in his account to cover the check. Attorney Proost eventually sent the lawyer a cashier's check to cover the check that had been returned for insufficient funds. Judgment was subsequently entered against Attorney Proost. He has not yet satisfied the judgment. Attorney Proost also sent the lawyer for Belva T.'s brothers a list of people to whom he owed money, several of whom were Attorney Proost's clients. According to the OLR, this conduct violated SCR 20:1.8(a) and SCR 20:8.4(c).

The third grievance under investigation involves Attorney Proost's representation of Gladys M. in various capacities over several years. Between 1993 and 1997, Attorney Proost obtained three loans from Gladys M., totaling $82,000. For each loan, Attorney Proost executed a promissory note. All loans, with interest, were to be repaid by January 1998. As of September 2004, Attorney Proost had repaid Gladys M. approximately $26,500 but the remaining balance remains unpaid. According to the OLR, this conduct violates SCR 20:1.8(a) and SCR 20:8.4(c).

The fourth grievance under investigation involves Attorney Proost's representation of Doris Z. in the sale of her home at a time when she was suffering from dementia and was living in a nursing home. Doris Z. turned over the proceeds from the sale of the house, approximately $150,000, to Attorney Proost to invest. Shortly after the sale of the home, Doris Z.'s daughter, Kathleen M., was named Doris Z.'s guardian. Kathleen M. requested an accounting of the proceeds from the sale of the house from Attorney Proost. Attorney Proost failed to provide an accounting. Kathleen M. then made a demand for the proceeds from the sale of the house, together with the interest earned on the proceeds. Despite indicating he had made arrangements to withdraw the proceeds from the investment vehicle and return them to Kathleen M., Attorney Proost failed to do so. In addition, in May of 1999, Attorney Proost obtained a $35,000 loan from Doris Z. That loan was payable in June of 1999 but remains unpaid. According to the OLR, this conduct violates SCR 20:1.7(b), SCR 1.8(a), SCR 20:1.15(d)(2) and SCR 20:8.4(c).

The final grievance under investigation involves Attorney Proost's representation of Roy H. and Fekjire and Nuredin L. in various transactions. Attorney Proost facilitated a transaction whereby Roy H. tendered $100,000 to the L's in reliance on a mortgage and note drafted by Attorney Proost. Although the L's failed to comply with the terms of the mortgage and note, Attorney Proost drafted a satisfaction of mortgage and later authenticated a fraudulent signature on the satisfaction of mortgage. According to the OLR, this conduct violated SCR 20:1.1, 20:1.2(d), SCR 20:1.7(a) and (b), 20:4.1(a) and (b) and SCR 20:8.4(b).

Attorney Proost admits under SCR 22.19(2) that he cannot successfully defend against the allegations of the grievance investigations. The OLR supports Attorney Proost's petition for consensual license revocation.

IT IS ORDERED that the petition for consensual license revocation is granted.

IT IS FURTHER ORDERED that the license of Gerald Proost to practice law in Wisconsin is revoked effective the date of this order.

IT IS FURTHER ORDERED that Gerald Proost shall comply with the requirements of SCR 22.26 relating to activities following revocation.

IT IS FURTHER ORDERED that Gerald Proost be required to satisfy the judgment entered against him in the lawsuit brought on behalf of Belva T.'s brothers; that he be required to make restitution to Gladys M. in the amount of $55,500, plus interest; and that he be required to satisfy the judgments entered against him as a result of his failure to turn over the proceeds from the sale of Doris Z.'s home and his failure to repay a loan to her.

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

       SCR 20:1.8(c) provides: Conflict of interest: prohibited transactions

        (c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where (1) the client is related to the donee, (2) the donee is a natural object of the bounty of the client, (3) there is no reasonable ground to anticipate a contest, or a claim of undue influence or for the public to lose confidence in the integrity of the bar and (4) the amount of the gift or bequest is reasonable and natural under the circumstances, (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

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

       SCR 20:1.7(b) provides: Conflict of interest: general rule
      (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(d)(2) provides: Safekeeping property; trust accounts and fiduciary accounts.
      (d) Prompt notice and delivery of property.
      (2) Accounting. Upon final distribution of any trust property or upon request by the client or a 3rd party having an ownership interest in the property, the lawyer shall promptly render a full written accounting regarding the property.

       SCR 20:1.1 provides: Competence
      A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

       SCR 20:1.2(d) provides: Scope of representation
      (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

       SCR 20:1.7(b) provides: Conflict of interest: general rule
      (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 chent 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 20:4.1(a) and (b) provide: Truthfulness in statements to others
      In the course of representing a chent a lawyer shah not knowingly:
      (a) make a false statement of a material fact or law to a third person; or
      (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a chent, unless disclosure is prohibited by Rule 1.6.

       SCR 20:8.4(b) provides: Misconduct

        (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;


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

      No. 2004AP2093-D.

      Decided October 20, 2005.

    2005 WI 141
    (Also reported in 705 N.W.2d 267.)
   PER CURIAM.

¶ 1. We review a report and recommendation filed by referee Rose Marie Baron on March 25, 2005, recommending that Attorney Michael J. Backes receive a public reprimand for professional misconduct committed in the course of his representation of F.M. in a postconviction criminal proceeding.

¶ 2. Having independently reviewed the record we affirm the referee's factual findings, agree with her conclusion that Attorney Backes' conduct violated SCR §§ 20:1.3 and 20:8.4, and agree that a public reprimand is appropriate discipline for this misconduct. We further agree that notwithstanding Attorney Backes objection, he should be required to pay the costs of the Office of Lawyer Regulation (OLR) proceeding, which total $2163.10 as of June 2005.

¶ 3. Attorney Backes was admitted to practice in Wisconsin in 1986, following a career in real estate. He was publicly reprimanded in 2005 for nine counts of misconduct committed in connection with three client matters. See In re Disciplinary Proceedings Against Backes, 2005 WI 59, 281 Wis. 2d 1, 697 N.W2d 49.

¶ 4. The OLR filed this complaint against Attorney Backes on August 9, 2004, alleging two counts of misconduct allegedly committed in the course of Attorney Backes' representation of F.M. in a criminal post-conviction matter. Attorney Backes admitted the majority of the factual allegations set forth in the complaint and the matter proceeded to a hearing before the referee on February 21, 2005, with the parties agreeing that the matter should be considered on submitted briefs and documents.

¶ 5. As the OLR complaint alleged, and the referee subsequently found, on July 1, 1998, F.M. was charged with one count of armed robbery and ultimately sentenced to 32 years in prison. His conviction was summarily affirmed. In April 2001 F.M. contacted Attorney Backes inquiring about the cost of postconviction representation.

¶ 6. On April 19, 2001, Attorney Backes notified F.M. in writing that his fee was $2500, half of which was due upon retainer and the balance due approximately 30 days later. He stated that his representation would begin upon payment of the initial amount and that after review of relevant documents he would schedule a visit. In late June 2001 F.M.'s acquaintance, H.B., delivered the $2500 retainer to Attorney Backes on F.M.'s behalf.

¶ 7. Stated simply, Attorney Backes essentially took no action on FM.'s case. Three times in early November 2001 F.M. wrote to Attorney Backes asking for a refund of his fee and for his file because nothing had been done on the matter. Attorney Backes responded in writing, claiming that he had reviewed the case. Attorney Backes did not terminate the representation, but instead scheduled a prison visit with F.M. that occurred on or about November 16, 2001.

¶ 8. In January 2002 F.M. wrote to Attorney Backes again, seeking an update on the status of his case. Attorney Backes did not respond. F.M. wrote to Attorney Backes again on February 14 and 17, 2002. Attorney Backes wrote to F.M. on or about February 22, 2002, but did not respond specifically to FM.'s earlier inquiries. Rather, he stated that he would inform F.M. about the status of the case "shortly" and asked him to "hang in there until I get back to you so we know where we are at."

¶ 9. On May 12,2002, F.M. requested a copy of the document to be filed on his behalf, and asked Attorney Backes to "stop dragging me along." On May 14, 2002, Attorney Backes wrote to F.M. and informed him that the matter would be proceeding.

¶ 10. On August 11, 2002, F.M. again sought a status update. Attorney Backes responded on August 28, 2002, explaining that he had been involved in a trial and other matters but that he should be able to move forward with FM.'s case in the near future.

¶ 11. On October 9, 2002, F.M. requested a refund of the fees he had paid and directed Attorney Backes to stop work on his file. On November 5, 2002, Attorney Backes responded that he had completed his work on F.M.'s case, and that he would be in touch shortly. On November 18, 2002, Attorney Backes wrote to F.M. again, advising him that he would file a petition for writ of habeas corpus in the court of appeals pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992) (a "Knight petition") adding: "I have prepared that petition for filing."

¶ 12. After the grievance in this matter was filed, representatives from the OLR requested a copy of this Knight petition. Attorney Backes then stated that "[t]here was no 'final typing' of a Knight petition, but rather an initial basis for a Knight was known, although I had hoped it would he expanded upon." Attorney Backes later stated to investigators that "[t]he final petition was not drafted or forwarded to [F.M.] because of difficulties which then took place as to a refund of legal fees, and it appeared that, in fact, the professional relationship with [F.M.] was, in fact, at an end."

¶ 13. In November 2002 F.M. filed a pro se motion for postconviction relief. On December 13,2002, he filed a pro se motion for reconsideration. Both were denied.

¶ 14. On November 22, 2002, Attorney Backes wrote to F.M. after a telephone conversation the previous day, saying he would send F.M.'s file and a partial refund of the legal fee. Attorney Backes did return FM.'s file on November 27, 2002. On December 2, 2002, Attorney Backes advised F.M. in writing that because a third party had paid the initial retainer, Attorney Backes had to return any fees to that third party. He explained that his written attempt to reach H.B. had been returned to sender with no forwarding address.

¶ 15. On December 18, 2002, F.M. wrote to Attorney Backes, again requesting the refund and stating that he did not know H.B.'s whereabouts. On December 30, 2002, Attorney Backes consulted with the State Bar Ethics Committee seeking guidance on how to handle the refund.

¶ 16. On March 3, 2003, EM., who had still not received any refund, sent Attorney Backes a letter stating that he wanted to reinstate Attorney Backes as his attorney and asked him to file the Knight petition. On May 9, 2003, F.M. sent Attorney Backes yet another letter, this time demanding return of the fee and a copy of the Knight petition so he could file it himself. F.M. filed a grievance against Attorney Backes with the OLR on May 22, 2003.

¶ 17. On June 3, 2003, Attorney Backes wrote to F.M. asking him to have H.B. contact him claiming that he was "proceeding" and would get back to him. On June 11, 2003, Attorney Backes wrote to F.M. again, this time addressing the merits of the case. On June 18, 2003, F.M. responded asking again that his file and fee be returned to him. On July 2, 2003, Attorney Backes responded reiterating that he had been retained by H.B. and remained unable to locate him.

¶ 18. Attorney Backes submitted his response to EM.'s grievance on September 25, 2003. He explained the length of time it took him to address F.M.'s case, as follows:

I have reviewed [F.M.'s] case and initially identified problems that existed. I did not bring the matter forward, at that time, in that I felt there were problems with it, and I, as is my practice, set the matter aside and intended to re-review it further. The term 'progressing' is a process which I have found has generated results in previous matters, that is when there is no immediate and clear path of action in which I have confidence.
I had previously explained to [F.M.] that this process is such that there is no guarantee of a result, but, certainly, I will review and re-review matters, a process which, on occasion, involves general brainstorming with other [attorneys], seminars, etc., which sometimes generates further ideas.
I believe that this process is best and that is why the time involved sometimes, depending on other caseload, does extend into a lengthy period of time.
I believe that, in my communications with [F.M.], both verbal and written, the process was explained and that he would need to be patient, given his sentence, given his situation, and given the facts that pertain to his case. I would represent that, if there was clear error which was overlooked by appellate counsel, that matter would have then been brought forward at that time.

¶ 19. On October 8, 2003, F.M. sent both the OLR and Attorney Backes copies of a Knight petition that he had filed, pro se, with the Wisconsin Court of Appeals. EM. suggested resolving his fee dispute with Attorney Backes by having Backes commit to helping him with further action if his pro se filing was denied. F.M. stated that he believed that Attorney Backes had not earned the $2500 he had been paid.

¶ 20. On October 21, 2003, Attorney Backes informed the OLR that he had sent F.M. copies of Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996), a court of appeals' decision, together with references to transcripts. He indicated that he was prepared to intervene at this point should F.M. desire his assistance. On the same date, October 21,2003, F.M. wrote to the OLR expressing his desire for a refund of the $2500 fee he paid Attorney Backes.

¶ 21. On November 6, 2003, F.M. wrote to Attorney Backes informing him that the Wisconsin Court of Appeals had denied his pro se appeal and asked for assistance or a return of the $2500 fee. On November 10, 2003, Attorney Backes wrote to F.M. stating that F.M. had no legitimate grounds to seek review in the Wisconsin Supreme Court, and stating that he had earned the $2500 fee.

¶ 22. The disciplinary complaint filed against Attorney Backes alleged that Attorney Backes violated SCR 20:1.3, which provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." Initially, Attorney Backes challenged this allegation, asserting that he had conducted himself in a professional and proper manner in all respects.

¶ 23. The referee disagreed. As she observed, F.M. first contacted Attorney Backes in April 2001. In June, Attorney Backes received $2500 to conduct a postcon-viction review of F.M.'s case. Attorney Backes continued to represent F.M. despite a November 2001 letter, seeking to terminate the representation. In September 2002 F.M. again attempted to terminate Attorney Backes' representation and requested a refund of fees paid. At that time, Attorney Backes informed F.M. that he had completed the work on his case and would be contacting him shortly. Attorney Backes then told F.M. he would be filing a Knight petition and stated further that he had prepared the petition for filing. The referee found that this was untrue. F.M. eventually had to file his petition pro se.

¶ 24. At the disciplinary hearing conducted on this matter, Attorney Backes acknowledged that "too much time went past" but he sought to explain this, as follows:

[F.M.] is a very abrasive person sitting on a 32 year prison sentence. It's not, I mean, there was a desire on my part to earn my fee and he had pled guilty and was expecting a prison sentence of something under ten years. So I mean, it[']s not like this is something here with an immediate fire underneath it, that he's being held in prison and if it wasn't for this he would be released. I mean, he was just sentenced to a longer prison sentence as compared to a long prison sentence for a very serious crime and certainly had there been a mistake that he was convicted at trial and that this mistake would grant him a new trial or whatever, that puts things in a different light and he understood that. You know, he understood that he was facing this time.
So I take some exception in viewing that differently than one where you have some immediate action that is going to result in some dramatic change or releasing a man from prison or something of that kind. This was not the case here.

¶ 25. In considering this matter the referee acknowledged Attorney Backes' testimony that F.M. was a difficult client. However, the referee agreed with counsel for the OLR who noted that "once you agree to represent someone and accept the fee, you assume all the responsibilities toward that client set forth in the Supreme Court rules." The referee was not persuaded by the reasons that Attorney Backes proffered for needing to review and re-review F.M.'s case file and ultimately concluded that Attorney Backes' timetable and strategies were "inappropriate" and did not "reflect reasonable diligence and promptness in representing a client." Thus, the referee concluded that Attorney Backes violated SCR 20:1.3. Based on our own review of this record we agree with this conclusion.

¶ 26. The complaint also alleged, and the referee concluded that Attorney Backes violated SCR 20:8.4(c), which provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Specifically, the OLR complaint alleged that "[o]n November 18, 2002, Backes wrote to [F.M.], I have firmly reached the conclusion that the only course of action available to you is a Knight petition, and I have prepared that petition for filing.'" Later, when asked to produce this draft, Attorney Backes stated:

There was no 'final typing' of a Knight petition, but rather an initial basis for a Knight was known, although I had hoped it would be expanded upon.
The final petition was not drafted or forwarded to [F.M.] because of difficulties which then took place as to a refund of legal fees, and it appeared that, in fact, the professional relationship with [F.M.] was, in fact, at an end.

Attorney Backes disagreed that this incident constituted a violation of SCR 20:8.4(c), explaining:

In my view the [Knight] petition was completed. I mean, you know, I had all the facts together. I mean, it's all there, I got it all down. And the term filing is just a term that I used in the letter to [F.M.] that I certainly wish I had not because it implies like taking it getting the file stamp. But that was not my intent to portray that. So that was a mistake in terminology I think more than anything. There was going back and forth on this but there was problems with it. I did believe that it would fail. If there was going to be anything that could succeed it would be the Knight petition.

¶ 27. The referee stated that she could not reconcile Attorney Backes' explanations to the OLR stating that "[t]here was no 'final typing' of a Knight petition" and his explanation that "[t]he final petition was not drafted or forwarded to [F.M.] because of problems with a refund of fees" and Attorney Backes' testimony at the hearing, cited above. She thus concluded that Attorney Backes had misrepresented the status of the Knight petition to his client, thereby engaging in conduct involving dishonesty, deceit, and misrepresentation in violation of SCR 20:8.4(c). We agree that the record supports this conclusion of law.

¶ 28. We consider the appropriate discipline for Attorney Backes' misconduct. The referee recommended Attorney Backes receive a public reprimand, together with an order to pay the costs of this proceeding. We agree that a public reprimand is appropriate discipline for Attorney Backes' misconduct in this matter. We further agree that he should be required to pay the costs of this proceeding.

¶ 29. IT IS ORDERED that Attorney Michael J. Backes is publicly reprimanded for professional misconduct.

¶ 30. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Michael J. Backes pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Michael J. Backes to practice law in Wisconsin shall be suspended until further order of the court.

       On May 25, 2005, this court issued a per curiam decision, publicly reprimanding Attorney Michael Backes for professional misconduct in a separate matter. Shortly before that decision was mandated, Attorney Backes filed a motion to consolidate that disciplinary proceeding with this one. The motion was denied and, shortly thereafter, Attorney Backes voluntarily dismissed his appeal from the report and recommendation filed in this matter. Therefore, this matter is considered under SCR 22.17(2).

       Restitution was not recommended by the Office of Lawyer Regulation or the referee in this matter.

       Backes later stated that he received a letter on January 7, 2003, indicating that the request for an ethics opinion would be brought to the committee at its January meeting, but that he never received an opinion regarding his inquiry.

       We note that on July 1, 2005, Backes filed an objection to the assessment of costs submitted by the OLR, deeming them "excessive" for a voluntarily dismissed appeal. However, he did not further challenge those costs with specificity and we deem his objection denied.


text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Peter A. Fonte, Defendant-Appellant.
    Supreme Court

      No. 2003AP2097-CR.

      Decided October 21, 2005.

    2005 WI 145
    (Also reported in 704 N.W.2d 912.)
   PER CURIAM.

¶ 1. The defendant, Peter A. Fonte, moves the court to withdraw and reconsider its opinion in State v. Fonte, 2005 WI 77, 281 Wis. 2d 654, 698 N.W.2d 594. Fonte contends that the court (1) made a factual error in footnote nine of its opinion; (2) should further address the court of appeals' rationale for granting relief in favor of Fonte; and (3) should "reconsider its conclusion that evidence of Fonte's aliases did not harm his defense because the nature of his crime was accidental rather than intentional."

¶ 2. To clarify the opinion, we modify ¶ 29, footnote 9, to read as follows:

9 The jury heard expert testimony that Fonte had a blood alcohol level at the time of the accident of at least 0.122.

¶ 3. The motion for reconsideration is denied without costs.

¶ 4. N. PATRICK CROOKS, J., did not participate.


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

      No. 2004AP2056-D.

      Decided October 25, 2005.

    2005 WI 146
    (Also reported in 704 N.W.2d 912.)
   PER CURIAM.

¶ 1. We review the findings of fact, conclusions of law and recommendation of referee Judith Sperling-Newton recommending that Attorney Gary A. Miller be publicly reprimanded for failing to disburse funds being held in his trust account after the trial court had ordered the funds to be granted to his client's ex-wife in a divorce property settlement.

¶ 2. We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We also agree with the referee's conclusions of law, and we agree that the appropriate discipline for the misconduct is a public reprimand. In addition, we conclude that the costs of the proceeding, which are $5486.86, as of July 21, 2005, should be assessed against Attorney Miller.

¶ 3. Attorney Miller was admitted to practice law in Wisconsin in 1970 and practices in Madison. In 1995 he received a private reprimand for misconduct consisting of misrepresenting he had an attorney's lien as security for his fee in a personal injury matter and failing to promptly deliver his client's file materials to successor counsel.

¶ 4. In August 2004 the Office of Lawyer Regulation (OLR) filed a complaint alleging three counts of misconduct involving two clients. After conducting discovery the OLR withdrew one of the counts. The remaining two counts of the complaint involved Attorney Miller's representation of D.E. in a divorce action filed by D.E.'s wife, J.E. Attorney Miller spends about half of his professional time on family law-related matters and has handled between 500 and 700 divorce cases, 100 to 150 of which were contested.

¶ 5. At the time D.E. retained Attorney Miller, D.E. was represented by another lawyer in a personal injury case. D.E. signed a written retainer agreement with Attorney Miller indicating that Attorney Miller would have a lien on the proceeds of any settlement coming out of the personal injury action for payment of his attorney's fees.

¶ 6. On October 29, 1999, D.E.'s personal injury attorney forwarded $24,000, representing the settlement in the personal injury case, to Attorney Miller. The check was made payable to both D.E. and J.E. Upon receipt of the check, Attorney Miller notified J.E.'s attorney, Walter Stewart, and requested that J.E. sign a release. Attorney Miller informed Attorney Stewart that he would deposit the check into his trust account and that the parties would attempt to resolve all of the remaining issues in the divorce matter. Both D.E. and J.E. endorsed the check and Attorney Miller deposited it into his trust account on December 1, 1999. At the time Attorney Miller gave notice to Attorney Stewart and deposited the funds into his trust account, a temporary order was in effect in the divorce action.

¶ 7. A trial of the divorce case was scheduled for July 18, 2000, before Judge Gerald Nichol. Prior to trial the parties tried, but were unable, to resolve three issues: (1) how the marital property should be divided; (2) how the substantial marital debts should be allocated; and (3) whether J.E. was entitled to any money from the $24,000 personal injury settlement. At the trial, Judge Nichol found there was a loss of taxable income to D.E. and J.E. as a result of the personal injury and that J.E. was entitled to $7329 of the personal injury settlement. The court made the following statement to Attorney Miller:

So, I'm saying she [J.E.] gets what's in [Stewart's] trust account, he gets what's in the tax refund of 3,600 totally his, whatever the difference, which is like $114, if you're going [to] equally divide them, I'm applying toward attorneys fees and then I'm awarding out of your trust account the 73 and he gets the 13 or whatever it is.

Attorney Miller replied, "Okay. All right."

¶ 8. After the trial, Attorney Stewart drafted proposed findings of fact, conclusions of law and a judgment of divorce, which were signed by the court on February 6, 2001. The judgment awarded J.E. a "cash settlement payment of $7,329 representing a lost income portion of the March 10, 1998 traffic accident." The judgment did not specifically state that the money should come from Attorney Miller's trust account, but the funds from the settlement check remained in his trust account.

¶ 9. From the time of the July 2000 divorce trial until March 16, 2001, Attorney Miller's trust account balance attributable to D.E. was $8089. On March 16, 2001, Attorney Miller withdrew $760 from his trust account for attorney's fees, leaving $7329 in trust attributable to D.E., which was the amount awarded to J.E. in the divorce judgment.

¶ 10. On March 19, 2001, D.E. requested the balance of the amount in Attorney Miller's trust account. On March 30, 2001, despite an order from the circuit court awarding J.E. the $7329 remaining in the trust account, Attorney Miller paid D.E. $4929.99 and paid the balance of his attorney's fees in the amount of $2400, leaving a zero balance in the trust account attributable to D.E.

¶ 11. Attorney Stewart sent several letters to Attorney Miller requesting that he forward to J.E. the $7329 which he was supposed to be holding in his trust account. Attorney Miller did not object to complying with that request until May 4, 2001, when he wrote to Attorney Stewart saying Attorney Stewart had overstated or misstated what was required by the judgment of divorce and that J.E. had been awarded only a money judgment. Attorney Miller told Attorney Stewart that D.E. had requested the funds in the trust account and, without an order requiring him to hold the funds, Attorney Miller said he was required to comply with his client's request. Attorney Miller informed Attorney Stewart that it "made better practical sense to file bankruptcy, which would include [J.E.'s] money judgment and [Attorney Stewart's] claims for attorney fees."

¶ 12. On April 1, 2002, Attorney Stewart filed a motion on J.E.'s behalf to find Attorney Miller in contempt of court. The family court commissioner denied the motion, and J.E. appealed. Judge Nichol reviewed the family court commissioner's decision de novo and in October 2002 issued a written decision finding Attorney Miller in contempt of court and ordered him to pay J.E. $7329, plus interest from March 30, 2001, and to reimburse her for her attorney's fees and costs within 30 days of the decision. On October 26, 2002, Attorney Miller paid J.E. the amount initially ordered by Judge Nichol, plus interest. Attorney Miller then appealed Judge Nichol's decision to the court of appeals and on September 25, 2003, the court of appeals affirmed.

¶ 13. Referee Sperling-Newton held a hearing in February 2005 and she issued her decision on June 20, 2005. The OLR's complaint alleged and the referee agreed that by failing to disburse to J.E. the $7329 that was being held in Attorney Miller's trust account pending the outcome of the divorce proceeding, which funds the trial court had ordered to be granted to J.E. in the divorce property settlement, Attorney Miller violated former SCR 20:l.l5(a).

¶ 14. The OLR's complaint also alleged and the referee agreed that by failing to comply with the trial court's order to disburse to J.E. $7329 of the proceeds from a personal injury settlement held in Attorney Miller's trust account and instead dispersing such funds to himself and his client, Attorney Miller violated SCR 20:3.4(c).

¶ 15. In discussing the appropriate discipline to be imposed for the misconduct, the referee said that aggravating factors in the case were Attorney Miller's prior disciplinary record consisting of a private reprimand and the nearly three year delay in making restitution to J.E. The referee said a mitigating factor was the fact that Attorney Miller did eventually make restitution to J.E., although he did so three years after the funds were disbursed from his trust account.

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

¶ 17. We also agree with the referee's recommendation that a public reprimand is an appropriate level of discipline to impose for the misconduct at issue in this case.

¶ 18. IT IS ORDERED that Attorney Gary A. Miller is publicly reprimanded for his professional misconduct.

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

       Former SCR 20:1.15 applies to misconduct committed prior to July 1, 2004. Former SCR 20:1.15(a) provided in pertinent part: "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."

       SCR 20:3.4(c) provides that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists."


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

      No. 2004AP2998-D.

      Decided October 25, 2005.

    2005 WI 147
    (Also reported in 705 N.W.2d 90.)
   PER CURIAM.

¶ 1. We review a report and recommendation filed by referee Rose Marie Baron on April 11, 2005, incorporating Attorney Pierquet's no contest plea and stipulations executed by the parties, recommending that Attorney Mark G. Pierquet receive a public reprimand for professional misconduct and that the court impose certain conditions upon Attorney Pierquet's practice of law.

¶ 2. Having independently reviewed the record, we accept the referee's factual findings and recommendation upon stipulations. We agree that Attorney Pierquet's conduct violated the rules of professional conduct and we further agree that a public reprimand and the imposition of conditions is the appropriate discipline for Attorney Pierquet's misconduct. We also conclude that Attorney Pierquet should be required to pay the costs of the Office of Lawyer Regulation (OLR) proceeding, which total $810.72 as of April 28, 2005.

¶ 3. Attorney Pierquet was admitted to practice law in Wisconsin in September 2001. He has not previously been disciplined.

¶ 4. As the OLR complaint alleged and the referee subsequently found, the client in this matter, R.G., allegedly sustained injuries while undergoing treatment at a doctor's office in January 2000. In 2001 an attorney in Menasha referred R.G. to Attorney Pierquet and a colleague who would serve as his co-counsel.

¶ 5. Attorney Pierquet and his colleague met with R.G. and explained that they would jointly represent R.G. Attorney Pierquet would investigate and plead the case; his colleague was responsible for the trial.

¶ 6. R.G. agreed to retain Attorney Pierquet and his colleague on a contingent fee basis. Attorney Pier-quet asserts that he reduced the contingent fee to writing, but was unable to produce a copy. R.G. does not recall signing a contingent fee agreement, but does recall that he asked Attorney Pierquet for a copy and did not receive one.

¶ 7. On July 9, 2002, Attorney Pierquet filed a complaint on behalf of R.G. in the Outagamie County Circuit Court. On January 9, 2003, opposing counsel wrote Attorney Pierquet, seeking dates to depose R.G.'s expert witnesses. Attorney Pierquet failed to respond to that letter.

¶ 8. On March 10, 2003, opposing counsel spoke with Attorney Pierquet and Pierquet agreed to provide the expert witnesses for depositions. On March 27, 2003, opposing counsel wrote Attorney Pierquet, again seeking deposition dates for the expert witnesses, and also seeking a stipulation to modify the scheduling order. Attorney Pierquet failed to respond to that letter.

¶ 9. Opposing counsel called Attorney Pierquet on April 7th, April 11th, and April 15, 2003, to inquire about the stipulation for modifying the scheduling order. Attorney Pierquet failed to return these calls.

¶ 10. On April 16, 2003, opposing counsel wrote to Attorney Pierquet requesting a response and informing Attorney Pierquet that failure to respond would result in a motion to the court. Attorney Pierquet did not respond.

¶ 11. On May 13, 2003, opposing counsel filed a motion to dismiss R.G.'s complaint, or in the alternative to modify the scheduling order and compel discovery. The circuit court heard the motion on July 2, 2003. The court then limited R.G.'s witnesses, ordered R.G. to provide opposing counsel the theory of liability by July 14, 2003, and imposed costs of $400 on R.G. to compensate opposing counsel for the costs of bringing the motion.

¶ 12. On July 2, 2003, opposing counsel spoke with Attorney Pierquet about dismissing the lawsuit. On July 9, 2003, opposing counsel sent Attorney Pier-quet a stipulation and order for dismissal.

¶ 13. Attorney Pierquet failed to provide opposing counsel the theory of liability by July 14, 2003, as ordered by the court.

¶ 14. On August 8, 2003, without consulting his client, Attorney Pierquet signed a stipulation to dismiss R.G.'s case with prejudice. On August 27, 2003, based upon this stipulation, the circuit court dismissed the lawsuit. Attorney Pierquet did not inform either R.G. or his own colleague that he had stipulated to dismissal of the case.

¶ 15. In September 2003 Attorney Pierquet's colleague received notice of a trial date for R.G.'s case. He informed Attorney Pierquet that he required more time to prepare for trial. Attorney Pierquet then informed his colleague that due to the lack of notice, the court had removed the case from the calendar and would reschedule it later. This information was false, as Attorney Pierquet knew.

¶ 16. On or about September 9, 2003, R.G. called Attorney Pierquet to ask what he should wear to court. Attorney Pierquet did not inform R.G. that he had stipulated to dismissal, and instead told R.G. that the case was progressing smoothly toward conclusion.

¶ 17. On or about October 8, 2003, R.G. contacted Attorney Pierquet, stating that he had learned that his case had been dismissed. He sought an explanation from Attorney Pierquet. Attorney Pierquet falsely stated to R.G. that he had not signed a stipulation dismissing the case.

¶ 18. At this point Attorney Pierquet's colleague conducted a case search and confirmed that a stipulation for dismissal had been entered in R.G.'s case. He confronted Attorney Pierquet, who initially gave a noncommittal response, but subsequently admitted signing the stipulation.

¶ 19. The disciplinary complaint filed against Attorney Pierquet alleged five counts of misconduct. Eventually, Attorney Pierquet agreed to plead no contest to these five counts. In March 2005 the parties executed a stipulation and no contest plea agreeing, with minor clarifications, that the factual allegations set forth in the complaint were accurate. The referee thus concluded that there was an adequate factual basis in the record to show that Attorney Pierquet had committed misconduct in respect to each of the five allegations set forth by the OLR. Subsequently, the parties entered a second stipulation regarding discipline.

¶ 20. The stipulation stated, and the referee concluded that by failing to reduce his contingent fee agreement with R.G. to writing, Attorney Pierquet violated SCR 20:1.5(c).

¶ 21. In addition, the parties stipulated and the referee concluded that by failing to properly prosecute R.G.'s lawsuit, by failing to respond to discovery requests, and by failing to comply with a court-ordered deadline, Attorney Pierquet failed to provide competent representation in violation of SCR 20:1.1, and also failed to act with reasonable diligence and promptness in representing a client in violation of SCR 20:1.3.

¶ 22. In addition, by stipulating to the dismissal of R.G.'s lawsuit with prejudice without consulting or informing his client, the parties stipulated and the referee concluded that Attorney Pierquet failed to abide by a client's decisions concerning the objectives of a 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).

¶ 23. The stipulation provided and the referee also concluded that by stating to R.G. that the case was progressing, and by denying that he had signed a stipulation for dismissal when in fact he had signed a stipulation for dismissal and the case had been dismissed, Attorney Pierquet engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of SCR 20:8.4(c).

¶ 24. Finally, the parties stipulated and the referee concluded that by failing to inform his co-counsel that he had dismissed the case and by misleading co-counsel into believing the case was pending and that the trial would be rescheduled, Attorney Pierquet engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of SCR 20:8.4(c).

¶ 25. The parties eventually reached a second stipulation providing that Attorney Pierquet would receive a public reprimand for his misconduct and that certain conditions would be imposed on Attorney Pierquet's practice of law. Specifically, the parties stipulated that:

For a period of two years following the date of the Supreme Court's final order, Pierquet shall continue medical treatment, and shall comply with all treatment recommendations; and
Six months after the date of the Supreme Court's final order, and every six months thereafter until two years after the Court's order, Pierquet shall provide full medical treatment records to OLR.

¶ 26. The stipulation sets forth the medical reasons for these conditions and the referee accepted the stipulation as part of her recommendation regarding discipline. Based on our review of the record, we agree that a public reprimand with the imposition of the conditions described herein is appropriate in this matter. We further conclude that Attorney Pierquet should be required to pay the costs of this proceeding.

¶ 27. IT IS ORDERED that Attorney Mark G. Pierquet is publicly reprimanded for professional misconduct.

¶ 28. IT IS FURTHER ORDERED that the following conditions are imposed upon Attorney Pierquet's license to practice law in Wisconsin:

For a period of two years following the date of the Supreme Court's final order, [Attorney] Pierquet shall continue medical treatment, and shall comply with all treatment recommendations; and
Six months after the date of the Supreme Court's final order, and every six months thereafter until two years after the Court's order, [Attorney] Pierquet shall provide full medical treatment records to [the] OLR.

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

       SCR 20:1.5(c) provides:
      A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and if there is a recovery, showing the remittance to the client and the method of its determination.

       SCR 20:1.1 provides that "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

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

       SCR 20:1.2(a) provides: Scope of representation.

        A lawyer shall abide by a cbent's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall inform a cbent of all offers of settlement and abide by a cbent's decision whether to accept an offer of settlement of a matter. In a criminal case or any proceeding that could result in deprivation of bberty, the lawyer shah abide by the cbent's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the cbent wib testify.

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